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Emplaw Monthly - End of February 2020

New Articles From Our Authors

 

Government announcement on new points-based immigration system

An article from Emplaw authors Lewis Silkin on the recent policy statement on arrangements  to  take effect from January 2021, which include the proposed requirements for sponsored skilled workers (Tier 2) and don't include entry routes for lower- skilled workers, except in the agricultural sector. 

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How does EU law apply in the UK after Brexit?

This essential read from Emplaw authors Gowling WLG explains how EU law will apply in the UK both during and after the transition period which is due to end on 31 December 2020

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NEWS

UK points-based immigration system

The government has published a policy statement setting out its plans for a new UK points-based immigration system.

The policy statement includes information on:

·        the scope of the points-based system

·        salary and skills thresholds for skilled workers

·        a route for highly-skilled workers

·        reducing the overall number of lower-skilled workers

·        the visa process

·        crossing the UK border

·        engagement and outreach

·        Migration Advisory Committee analysis of a points-based system

https://www.gov.uk/government/publications/the-uks-points-based-immigration-system-policy-statement?utm_source=adda7e36-20e4-4894-ac9d-dc892abcae49&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

For  more information please see the  article from Emplaw authors Lewis Silkin

National Living Wage  Updates

Government response on salaried hours work and salary sacrifice consultation

Through the consultation on salaried hours work and salary sacrifice schemes, the government has gathered evidence on elements of the NMW rules that could be improved whilst maintaining existing worker protections.

The consultation opened on 17 December 2018 and closed on 1 March 2019. Following its consideration of over 100 responses, and discussions with a wide range of stakeholders, the government will make three substantive changes to the NMW rules relating to salaried hours workers:

1.     The government will amend the NMW Regulations to allow salaried hours workers to be paid in additional equal instalments, such as fortnightly or four-weekly;

2.     The government will amend the NMW Regulations to provide employers with the discretion to choose a calculation year for their workers; and

3.     The government will amend the NMW Regulations to allow employers to make premium payments to their salaried hours workers in respect of basic hours, and to allow salaried hours workers’ contracts to specify these premium pay arrangements. These payments will not form part of the workers’ remuneration for calculating NMW pay.

The government found some evidence, through the consultation, that salary sacrifice and pay deduction arrangements are being withdrawn by employers, in some cases due to concern over non-compliance with the NMW rules.

However, evidence also made clear that allowing workers and employers to agree rates of pay below the legal minimum would undermine the integrity of the NMW rules and present risks to the lowest-paid workers. The government does not therefore propose to amend the NMW Regulations relating to these arrangements. However the Secretary of State issued a Direction in February 2020 which provides that, if following an HMRC investigation, the only reason minimum wage was underpaid was because the employer made a deduction from a worker’s pay/ enrolled them in a salary sacrifice scheme, with the worker’s consent, and the worker has received the correct good/benefit as a result of that deduction (e.g. childcare vouchers, savings club) , the employer, who had not  breached the NMW legislation in the recent past,  will not face a penalty (or be named). The Policy on HM Revenue & Customs enforcement , prosecutions and naming employers who break National Minimum Wage law has been updated accordingly.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/864185/salaried-hours-work-salary-sacrifice-consultation-government-response.pdf

Draft Minimum Wage (Amendment) Regulations

The Draft Minimum Wage (Amendment) Regulations 2020 have been published. The Regulations come into force on 1 April 2020.

Regulation 2(2) increases the rate of the national minimum wage for workers who are aged 25 or over (“the national living wage rate”) from £8.21 to £8.72 per hour.

Regulation 2(3)(a) increases the rate of the national minimum wage for workers who are aged 21 or over (but not yet aged 25) from £7.70 to £8.20 per hour.

Regulation 2(3)(b) increases the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £6.15 to £6.45 per hour.

Regulation 2(3)(c) increases the rate of the national minimum wage for workers who are aged under the age of 18 from £4.35 to £4.55 per hour.

The apprenticeship rate applies to workers within regulation 5(1)(a) and (b) of the 2015 Regulations. Regulation 2(3)(d) of these Regulations increases the rate for such workers from £3.90 to £4.15 per hour.

http://www.legislation.gov.uk/ukdsi/2020/9780111192351

Government evidence on compliance and enforcement of the National Living Wage and the National Minimum Wage

BEIS has published a report providing an overview of Minimum Wage enforcement activity during 2018/19.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/866766/nlw-nmw-government-evidence-compliance-enforcement-2018-19.pdf

Sleeping and Working

Earlier this  month, the  Supreme Court heard the Mencap appeal and judgement is awaited. The case concerns whether home workers who are required to remain at home in their shift and/or residential care workers who ‘sleep in’ are entitled to the national minimum wage for time that is not spent actually performing some specific activity.

https://www.supremecourt.uk/cases/uksc-2018-0160.html

ICO statement on data protection and Brexit

The Information Commissioner’s Office has issued a statement to the effect that the General Data Protection Regulation will continue to apply during the Brexit transition period.

https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2020/01/statement-on-data-protection-and-brexit-implementation-what-you-need-to-do/

Acas guidance on non-disclosure agreements

Acas has published new guidance on non-disclosure agreements to help employers and workers understand what these are and to prevent their misuse.

Emplaw authors Lewis Silkin have prepared a useful table to clarify current legal and regulatory requirements, best practice and future proposals for using NDAs in both settlement agreements and employment contracts.

https://www.acas.org.uk/non-disclosure-agreements

https://www.lewissilkin.com/en/insights/new-guidance-on-ndas?utm_source=vuture&utm_medium=email&utm_campaign=working%20times%20%7c%20veganism%20guidance%20%7c%20enhanced%20pay%20for%20spl%20%7c%20bad%20interview%20stories(1)

Guidance on the Coronavirus

Acas guidance that advises that it would be good practice for an employer to treat self-quarantine as sick leave as well as newly published government guidance.

https://www.acas.org.uk/acas-publishes-new-advice-on-handling-coronavirus-at-work

https://www.emplaw.co.uk/node/25430#toc-15

Off-payroll review and working commencement rules

The Government has published its review Review of changes to the off-payroll working rules confirming that implementation will take effect on 6th April as planned. The Review confirms that businesses will not have to pay penalties for inaccuracies in the first year, except in cases of deliberate non-compliance

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/867519/20-02-19_-_FINAL_Off-payroll_Review_Document.pdf

The government has also published detailed guidance including a useful flow chart

https://www.gov.uk/government/publications/off-payroll-working-rules-communication-resources

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/867416/Contractor_flowchart_off-payroll_working_IR35.pdf

In the course of the review HMRC  made an announcement to give business more time to prepare.Changes to the operation of the off-payroll working rules will only apply to payments made for services provided on or after 6 April 2020 (not to payments after that date in relation to services provided before). The Employment Status Manual has been updated.

https://www.gov.uk/government/news/hmrc-announces-change-to-the-off-payroll-working-rules

The government  also published draft secondary legislation on the IR35 which closed for comment on 19th February.

The changes will shift responsibility for operating the rules from the worker’s company to the medium and large-sized organisation they work for to improve compliance, extending the rules that already apply to the public sector.

https://www.gov.uk/government/consultations/draft-secondary-legislation-off-payroll-working-rules-from-april-2020

Enhanced pay for shared parental leave is not sex discrimination

The Supreme Court has refused permission to appeal in the case of Chief Constable of Leicestershire Police v Hextall, so that the Court of Appeal’s judgment stands. The Court of Appeal found that that failure to enhance pay for shared parental leave was neither indirect discrimination nor a breach of equal pay rights.

https://www.lewissilkin.com/en/insights/failing-to-enhance-pay-for-shared-parental-leave-is-not-sex-discrimination?utm_source=emplaw+online+subscribers+and+contributors&utm_campaign=63487dceac-EMAIL_CAMPAIGN_2018_12_19_10_42_COPY_47&utm_medium=email&utm_term=0_f078d5b97a-63487dceac-

CASES: 

Ishola v Transport for London [2020] EWCA Civ 112

‘PCP’ requires element of repetition

Sections 20 and 21 of the Equality Act 2010 set out the framework for the duty to make reasonable adjustments. Section 20 provides:

‘20. Duty to make adjustments

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The Civil Aviation Authority v R(Jet2) Ltd [2020] EWCA Civ 3

‘Dominant purpose’ necessary for legal advice privilege'

In this case the Court of Appeal has ruled that for the purposes of legal advice privilege (LAP) it is necessary that the dominant purpose for the creation or transmission of a document was for obtaining legal advice.

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Tesco Stores Ltd v Tennant UKEAT/0167/19

Impairment should have lasted for 12 months under para 2(1)(a) of Schedule 1 of Equality Act

Section 6 of the Equality Act 2010 provides that 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 effect on P’s ability to carry out normal day-to-day activities’.
Paragraph 2 of Schedule 1 states:
‘(1) the effect of an impairment is long-term if -

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Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasimi [2020] UKEAT 0106/19

No right to pursue claim in ET where contract was performed illegally

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Basfar v Wong [2020] UKEAT/0223/19

Employing domestic staff in diplomatic residence was not a ‘commercial activity’ so as to fall outside protection of diplomatic immunity

Article 31(1) of the Vienna Convention on Diplomatic Relations 1961 provides:

‘1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction except in the case of [...]

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Casamitjana Costa v League Against Cruel Sports ET/3331129/18

Ethical veganism can be a protected ‘philosophical belief’

Section 10 of the Equality Act 2010 deals with religion or belief and provides:

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Hexagon Sociedad Anonima v Hepburn [2019] UKEAT 0018/19

Off shore worker could bring claim in Scottish court

Until the repeal of s.196 of the Employment Rights Act 1996 the jurisdiction of the ET was territorial in scope; this territorial rule was removed in 1998. The courts have developed a body of case law which sets out the principles that determine whether the UK ETs have jurisdiction to hear a claim.

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Uddin v London Borough of Ealing [2020] UKEAT 0165/19

EAT applies Jhuti reasoning to unfair dismissal

A dismissal for misconduct is potentially fair under section 98(2)(b) Employment Rights Act 1996 and the test for fairness is set out at section 98(4). The test of fairness is also set out in case law including BHS Ltd v Burchell [1978] IRLR 379.

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Heal v University of Oxford & Ors [2019] UKEAT 0070/19

Considerations for request for audio recording of ET proceedings

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Jesudason v Alder Hey Children's NHS Foundation Trust [2020] EWCA Civ 73

Employer’s rebuttal of whistleblowing allegations was a detriment but not on the ground of the protected disclosure

Section 47B of the Employment Rights Act 1996 sets out the basic principle which affords protection to a whistle-blower:

"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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Metroline Travel Ltd v D'Auvergne & Ors[2020] UKEAT 0214/19

ET erred in ruling entitlement to meal relief payments

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