Emplaw Monthly - December 2019

NEW ARTICLES FROM OUR AUTHORS

The Queen’s Speech - December 2019

A note on the employment law references in the Queen's Speech and associated briefing notes. For a useful briefing on what is already in progress from the previous Tory administration see the updated article we published in November Your essential briefing on The Good Work Plan and subsequent developments

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Looking forwards and backwards: key cases of 2019 and which cases to look out for in 2020

An essential briefing on some of the most interesting or significant cases in 2019 and what decisions might be expected in 2020. 

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Dismissing An Employee & Maternity Pay: What Employers Need To Know

A useful article from Emplaw authors Gowling WLG considers the SMP tricky issues including 'bonus babies','offsetting' and 'exit packages'.

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NEWS

CONSULTATIONS AND  REPORTS

ICO consultation on subject access

The Information Commissioner’s Office has published a consultation on draft guidance to the right of subject access. The ICO has now drafted detailed guidance 
which explains in greater detail the rights that individuals have to access their personal data and the obligations on controllers. The draft guidance also explores the special rules involving certain categories of personal data, how to deal with requests involving the personal data of others, and the exemptions that are most likely to apply in practice when handling a request. The consultation closes on 12 February 2020.

https://wh.snapsurveys.com/s.asp?k=157493897966

ONS reveals disability pay gap

The Office for National Statistics has produced a report showing that median pay was consistently higher for non-disabled employees than for disabled employees. The disability pay gap was wider for men than for women.

Disabled employees with a mental impairment had the largest pay gap at 18.6%.

https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/disability/articles/disabilitypaygapsintheuk/2018

EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW

ICO guidance on data protection for SMEs

The Information Commissioner’s Office has published guidance for SMEs on data protection.

https://ico.org.uk/for-organisations/business/

Guide on Calculating Statutory Holiday

The government has published  Holiday Entitlement-Guide on Calculating Statutory Holiday. It should be read together with the guidance on How to calculate holiday entitlement for workers on different types of contract  and is designed to be used in conjunction with Holiday entitlement: calculate leave entitlement and the online tool holiday entitlement calculator. The new guide provides additional detail on the calculations used within those pages.with regards to workers on different types of contracts such as casual, irregular or annualized hours.

Given the prevalence of such contracts and the complexities in this area, it is useful and essential reading for many employer and  employee advisors.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/844795/BEIS_Holiday_Entitlement_Calculation_Guidance.pdf

General election - employment law consequences

The Conservative Party won the General Election and the Queen's Speech confirmed that the new government intends to follow through on the policies in their manifesto  including  ensuring that tips go direct to workers and not their bosses. For a summary of manifesto promises, please see the Emplaw article here

In the pipeline already are review and extension of the IR35 rules, extension of the right to written terms to all workers from 6 April 2020 and a 52-week reference period for statutory holiday pay and a lower threshold for setting up information and consultation arrangements.

For more information see the Emplaw article on The Queen’s Speech December 2019 

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

SRA warning notice on use of NDAs updated

The SRA warning notice on the use of NDAs updated, first issued in March 2018 has been updated to reflect the new SRA Standards and Regulations (which replaced The Solicitors Regulation Authority Handbook from 25 November 2019).

https://www.sra.org.uk/solicitors/guidance/warning-notices/use-of-non-disclosure-agreements-ndas--warning-notice/

SM&CR extended to solo-regulated firms 

On 9th December, the senior managers and certification regime (SM&CR) regime replaced the approved persons regime (APR) for solo firms regulated by the FCA..

From 9 December 2020 the Conduct Rules apply to all staff by that date, all solo-regulated firms will need to ensure:

  • all relevant staff are trained on the Conduct Rules and how they apply to their roles
  • all staff in certified roles are fit and proper to perform that role and are issued with a certificate
  • they submit data to the FCA  for the directory of key people working in financial service

The FCA has published guidance.

https://www.fca.org.uk/news/news-stories/fca-extends-senior-managers-and-certification-regime-47000-firms

https://www.fca.org.uk/firms/senior-managers-certification-regime/solo-regulated-firms

 

LEGISLATION AND LITIGATION

Whistleblowing Directive in force

Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law was published in the Official Journal on 26 November 2019 and entered into force 20 days later, ie 17th December 2019. Member states will have two years to transpose the new rules into their national law.

The requirement under Article 8 to  'establish channels and procedures for internal reporting and for follow-up, following consultation' applies to legal entities in the private sector with 50 to 249 workers and compliance in this regard is required by the  later date of 17th December 2020. 

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. There are a few minor changes to the extensive protection given under UK whistleblowing legislation but whether or not these changes are implemented into domestic legislation waits to be seen post Brexit.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2019.305.01.0017.01.ENG&toc=OJ:L:2019:305:TOC

View the Emplaw law card Whistleblowing for more information 

ET statistics July – September 2019

Single ET claims have continued to rise following the abolition of fees but multiple ET receipts have decreased over the last year. £18 million has been paid in ET fee refunds

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/851596/Tribunal_and_GRC_statistics_Q2_201920.pdf

 

CASES: 

Tiplady v City of Bradford Metropolitan District Council [2019] EWCA Civ 2180

Whistleblowing claim brought in capacity of worker in relation to detriments suffered as private individual

Section 47B(1) Employment Rights Act 1996 states:

"A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

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Royal Mail Group Ltd v Communication Workers Union [2019] EWCA Civ 2150

Injunction stops Royal Mail strike - ballot requirements 

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Stuart Delivery Ltd v Augustine UKEAT/0219/18

Delivery courier was a ‘limb b’ worker

S.230 Employment Rights Act 1996 provides as follows:
(1). In this Act, “employee” means an individual who has entered into or works under (or,

where the employment has ceased, worked under) a contract of employment.”

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The Commissioner of The City of London Police v Geldart [2019] UKEAT 0032/19

No comparator necessary for sex discrimination claim when woman on maternity leave- the Webb principle remains

This is an appeal by the Commissioner of the City of London Police against an ET judgment which: (a) upheld the claim made by Ms Geldart for direct sex discrimination in respect of the non-payment or partial payment of what is known as the London Allowance during her absence from duty on maternity leave; and (b) awarded her compensation for injury to feelings in the amount of £4,000. 

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Co-Operative Group Ltd & Anor v Walker (Rev 1) [2019] UKEAT 0087/19

Job Evaluation Survey could not be retrospective in determining work of equal value

In this case the EAT heard an appeal disputing the basis of an ET's finding of direct sex discrimination. The first issue between the parties emerged from a dispute about equal pay.

Section 66 of the Equality Act 2010 implies a sex equality clause into contracts of employment as follows -

"…..

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Case Summary Tag: 

Dewhurst & Ors v Revisecatch Limited (t/a Ecourier) & Anor [2019] UKET 2201909/2018

ET rules that TUPE applies to workers as well as employees

Regulation 2 (1) of TUPE 2006 is a definition section, which provides:

“'contract of employment’’ means any agreement between an employee and his employer determining the terms and conditions of his employment;

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Case Summary Tag: 

Herbai v Hungary [2019] ECHR 793

Balancing freedom of expression and employees’ rights

Mr Herbai, a human resources management expert at Bank O, started a knowledge-sharing website for human resources management-related publications and events.

According to the code of ethics of the bank, Mr Herbai was under an obligation not to publish formally or informally any information relating to the functioning and activities of his employer.

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Case Summary Tag: 

Royal Mail Group Ltd v Jhuti [2019] UKSC 55

Reason for dismissal may be a reason hidden from the dismissing officer

Section 103A of the Employment Rights Act 1996 (“the Act”) provides:

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

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