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Employment law update - Browne Jacobson Exeter - 06 February 2020

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These seminars are aimed at anyone who deals with employment law on a day to day basis, including HR Managers and HR Directors.

At these events we will present an overview of what we consider to be the most significant developments in 2019, and what they teach us about managing your workforce – together with our practical tips.

You will also hear about what is coming up in 2020, and how you can get ready for what will be another busy year in employment law.

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Employment law update - Browne Jacobson Exeter - 06 February 2020

  1. 1. Annual Employment Law Update Rachel Billen Senior Associate Bridget Prosser Partner 6 February 2020
  2. 2. 1 Today’s plan • Employment status • Holiday pay and working time • Discrimination • Disciplinary and dismissal issues • Future developments
  3. 3. 3 Status tests Established Case Law Taylor Review and the Good Work Plan Future Developments
  4. 4. 4 2019 status cases • Pimlico Plumbers returned to the ET. • National Gallery “freelancers” were found to be workers. • Uber has appealed to the Supreme Court. • The ET has sought assistance from the CJEU in respect of Yodel Couriers. • A Great British cyclist appealed to the EAT. • Decisions in respect of foster carers are awaited.
  5. 5. 6 Recording working time Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE Considered under the Working Time Directive by the CJEU: It would be “excessively difficult if not impossible” for workers to ensure compliance with their rights in respect of maximum working hours, weekly and daily working limited, and weekly rest periods, if an employer was not required to keep records of the hours worked.
  6. 6. 7 Voluntary overtime Flowers v East of England Ambulance Trust The Court of Appeal has confirmed that voluntary overtime should be taken into account when calculating holiday pay provided that it is sufficiently regular and settled for the payments made in respect of it to amount to “normal” remuneration.
  7. 7. 8 Breaks in series Chief Constable of Northern Ireland Police v Agnew In this case, the Court of Appeal in Northern Ireland held that a gap of more than 3 months did not break the series of deductions for holiday pay purposes. NB – this case is not formally binding on tribunals in England, Wales and Scotland but may be persuasive.
  8. 8. 9 Term time workers and holiday pay The Harpur Trust v Brazel Question asked: Should holiday entitlement for a part-year worker be calculated on a pro-rata basis at 12.07% of annual pay under the Working Time Regulations? Court of Appeal’s response: No.
  9. 9. 10 Holiday and sickness absence TSN v Hyvinvointialan liito ry Where employees are granted more leave than the minimum 4 weeks’ granted by the Working Time Directive but are unable to take their leave due to sickness, are they allowed to carry forward all leave or just the 4 weeks’ minimum? CJEU – there is nothing in the Working Time Directive which prevents national rules or collective agreements from restricting the carry forward of leave above the 4 weeks’ minimum.
  10. 10. 12 Quick-fire questions Question 1 Does less favourable treatment by reason of the employer’s religious beliefs (rather than the employee’s own beliefs) amount to direct discrimination?
  11. 11. 13 Quick-fire questions Question 2 An employee has a disability which is exacerbated by cold and damp conditions. The employee is asked to move workstations but refuses on the grounds that she believes it will exacerbate her disability. She is wrong in this belief. Can this amount to less favourable treatment?
  12. 12. 14 Quick-fire questions Question 3 It is established by case law that “costs alone” cannot amount to sufficient objective justification. Is it possible for “the absence of financial means” to be capable of justifying indirect age discrimination?
  13. 13. 15 Quick-fire questions Question 4 For discrimination purposes, is there a difference between the manner in which religious beliefs are expressed and the religious beliefs themselves?
  14. 14. 16 Quick-fire questions Question 5 If a Tribunal makes a finding of a one-off act of discrimination, will compensation for injury to feelings always fall within the lower Vento band?
  15. 15. 17 Quick-fire questions Question 6 Is it discriminatory to pay men on shared parental leave less than an enhanced rate paid to women on maternity leave?
  16. 16. 18 Quick-fire questions Question 7 Can a belief that sex is set at birth and cannot be changed amount to a philosophical belief?
  17. 17. 19 Quick-fire questions Question 8 Can a belief that animals should not be bred, caged or killed for the purposes of food amount to a philosophical belief?
  18. 18. 21 Suspension London Borough of Lambeth v Agoreyo This case concerned allegations of breach of contract pursued in the civil courts following the Claimant’s suspension. The Claimant alleged that her suspension amounted to a breach of the implied term of trust and confidence. County Court – no breach. High Court – breach. Court of Appeal – no breach.
  19. 19. 22 Police investigations North West Anglia NHS Foundation Trust v Gregg In almost all circumstances, it will not be necessary to postpone a disciplinary hearing pending the outcome of a police investigation into an employee.
  20. 20. 23 Poor investigations Aplin v The Governing Body of Tywyn Primary School A headteacher met two 17 year old males (still classed as children, by law) on Gindr and the three of them had sex. Despite a tribunal finding that the headteacher could have been disciplined for his admitted conduct, he was awarded £700,000 in compensation for a constructive unfair dismissal and discrimination claim. What went wrong for the employer?
  21. 21. 24 Amending reports Dronsfield v University of Reading Did amending an investigation report to remove comments favourable to the employee render the subsequent dismissal unfair? EAT – not in this case.
  22. 22. 25 Covert recordings Phoenix House v Stockman It transpired during the course of employment tribunal proceedings that the Claimant had covertly recorded an internal meeting. The Respondent, having lost on liability, sought to have compensation reduced to nil on the grounds that, had it known about the covert recording at the time, the Claimant would have been dismissed for gross misconduct.
  23. 23. 26 Whistleblowing and reasons Royal Mail Group Ltd v Jhuti Which reason is important in disclosure cases – the hidden reason or the invented one? Supreme Court: the hidden reason
  24. 24. 28 April changes (1) Statements of Particulars • Employees and Workers • Day 1 right • New timescales • Additional information required Holiday Pay Averages Where averaging is required: • Period will increase from 12 to 52 weeks • “No remuneration” weeks still to be disregarded • 104 week back-stop
  25. 25. 29 April changes (2) IR35 • Shift of responsibility (and risk) from B to A for determining status and dealing with tax. • Applies to large and medium sized companies. A – End User or Client B – Limited Company C – Individual who works for Limited Company
  26. 26. 30 IR35: Verify • Suite of services designed to assist you re IR35 • Review of your existing arrangements to identify areas of concern where there may be a risk that an IR35 Contractor is a disguised employee. • Includes:- • Training • Communication • Contracts • Audit services
  27. 27. 31 April changes (3) Agency Workers Information and Consultation Increase in Limits Termination Payments and NICs
  28. 28. 32 Future Cases Vicarious Liability and Data Breaches - Various v WM Morrisons Supermarket Equal Pay - Asda v Brierley Sleep-ins - Royal Mencap Society v Tomlinson-Blake Employment Status - Uber BV and others v Aslam and Others ShPP and Discrimination - Ali v Capita Customer Management Ltd; Hextall v Chief Constable of Leicestershire Police Holiday Pay – The Harpur Trust v Brazel Holiday Pay - Chief Constable of the Police Service of Northern Ireland and another v Agnew and others
  29. 29. 33 Queen’s Speech December 2019 Workforce related proposals: • Modern, fair, points-based immigration system. • New visa for qualified doctors, nurses and health professionals. • Raise the National Insurance threshold and the National Living Wage. • Measures to encourage flexible working. • Leave for unpaid carers. • Establish a National Skills Fund. • Minimum service levels during transport strikes.
  30. 30. 34 Other changes on the horizon? • Good work plan – status. • NDAs and workplace harassment and discrimination. • Ethnicity pay reporting. • Tribunal fees. • Grandparental leave. • Parental bereavement leave and pay. • Public sector exit payments.
  31. 31. 35 Any questions?
  32. 32. 37 Birmingham office Victoria House Victoria Square Birmingham B2 4BU +44 (0)121 237 3900 +44 (0)121 236 1291 Exeter office 1st Floor The Mount 72 Paris Street Exeter EX1 1JY +44 (0)1392 458800 +44 (0)1392 458801 London office 15th Floor 6 Bevis Marks London EC3A 7BA +44 (0)20 7337 1000 +44 (0)20 7929 1724 Manchester office 14th Floor No.1 Spinningfields 1 Hardman Square Spinningfields Manchester M3 3EB +44 (0)370 270 6000 +44 (0)161 375 0068 Nottingham office Mowbray House Castle Meadow Road Nottingham NG2 1BJ +44 (0)115 976 6000 +44 (0)115 947 5246 Contact us
  33. 33. All information correct at time of production. The information and opinions expressed within this document are no substitute for full legal advice. It is for guidance only and illustrates the law as at the published date. If in doubt, please telephone us on 0370 270 6000. © Browne Jacobson LLP 2020 – The information contained within this document is and shall remain the property of Browne Jacobson. This document may not be reproduced without the prior consent of Browne Jacobson.

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