Emplaw Monthly - December 2019
NEW ARTICLES FROM OUR AUTHORS
The Queen’s Speech - December 2019
Looking forwards and backwards: key cases of 2019 and which cases to look out for in 2020
Dismissing An Employee & Maternity Pay: What Employers Need To Know
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The Information Commissioner’s Office has published a consultation on draft guidance to the right of subject access.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 The draft guidance also explores the special rules involving certain categories of personal data, how to deal with requests involving the personal data of others, and the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.
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%.
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.
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.
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
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).
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.
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.
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
Whistleblowing claim brought in capacity of worker in relation to detriments suffered as private individual
"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."
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.”
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.
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 -
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.
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.”