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#Ppmahr let's talk developing our oganisations - employment relations updates - lga


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Employment Relations Update

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#Ppmahr let's talk developing our oganisations - employment relations updates - lga

  1. 1. Date Employment relations update: employment law Philip Bundy Senior Employment Law Adviser 20 April 2018
  2. 2. What will we cover? • Exit pay reforms in public sector • Legislative changes • Case law • What next?
  3. 3. Public sector exit pay reforms 1. £95k cap on exit payments (includes LGPS employer pension costs for those 55+) 2. Recovery of exit payments made to those earning £80k or more and who return to public sector within 12 months (tapered payback) 3. Further sub-sector reforms e.g. cap of 15 months’ actual pay, 3 weeks’ per year of service, pension top-ups restricted
  4. 4. When? • £95k cap – Consultation on draft Regs – Affirmative Parliamentary process • Recovery of exit payments – Consultation on further draft Regs – Affirmative Parliamentary process • Further reforms were to be in place by end of June 2017…
  5. 5. Gender pay gap reporting • Local authorities • Pay: • 5.4% median • 5.1% mean • Quartiles • Lowest: 64% women • Second: 65% women • Third: 63% women • Highest: 55% women
  6. 6. Trade Union Act: check off • ‘Check off’ arrangements in public sector only permitted if union pays costs of it and employees given another way to pay (power to extend it to non-public sector bodies performing public functions/publicly funded) • Due to be in force 10 March 2018: now delayed, but still intend to implement
  7. 7. Trade Union Act: facility time • Requirement for public sector bodies to publish trade union official facility time and cost of that • Facility time = (1) trade union duties + (2) paid trade union activities (see Acas guide) • 1 April – 31 March reporting, starts April 2017 • Information to be published by 31 July (starting 2018)
  8. 8. Trade Union Act: facility time • Local authorities have to treat as separate: – central function – education function – fire and rescue function • What if one of your central function officials carries out work in education function? Is that trade union activities as ‘outside employer’? • Government guidance expected soon
  9. 9. Mencap v Tomlinson-Blake (AB 648) • Does on call sleeping in time count towards National Minimum Wage? (AB 648) • Despite what NMW Regulations say on their face, and previous Government guidance, EAT said ‘yes’ it can (decision on appeal) – Test e.g. is there a statutory requirement to remain on premises • Potential for 6 years’ back pay
  10. 10. Mencap v Tomlinson-Blake • HMRC responsible for enforcement – Penalties: 200% of amount owed (up to £20k per worker) – Naming and shaming • 1 November 2017, social care compliance scheme: avoids fines and naming • Review pay and return compliance form by 31 December 2018, pay workers within 3 months
  11. 11. Dudley MBC v Willetts ors (AB 651) • Working Time Directive holiday pay should be based on ‘normal’ pay (AB 651) • EAT now confirmed that voluntary overtime pay should be factored into normal pay, where paid over sufficient period of time • Consistent with Green Book: holiday pay based on earnings during period of normal working, excluding non-regular payments
  12. 12. Villes de Nivelles v Matzak (AB 657) • Is on-call time away from workplace working time? • Mr Matzak volunteer firefighter: contractual requirement to live within 8 minutes of station and respond within 8 minutes • ECJ held requirement to spend on-call time at home and within 8 minutes amounted to such a restriction that on-call time was working time
  13. 13. Villes de Nivelles v Matzak • Remember: this is about working time for purposes of Working Time Directive • No impact on pay, but impacts on 48-hour working week and rest periods/breaks • 48-hour opt out • Rest periods can be varied through workplace/collective agreement, subject to compensatory rest issues
  14. 14. Sunderland Uni v Drossou (AB 653) • Week’s pay under ERA 1996 (in this case for UD compensation) • Conventional approach: did not include employer’s pension contributions • EAT held a week’s pay is remuneration payable under the contract so can include employer pension contributions • LGPS: how do you calculate that figure?
  15. 15. Sunderland Uni v Drossou (AB 653) • Impact on redundancy • Will apply to statutory redundancy pay • What about enhanced redundancy pay? What does your policy say about a week’s pay? • Does it link into ERA definition? • Do you need to specifically exclude employer pension contributions?
  16. 16. Kostal v Dunkley (AB 655) • S.145B TURL(C)A 1992: – Trade union worker has right not to have offer made which would have the ‘prohibited result’ i.e. that the worker’s terms and conditions or any of them will not or no longer be determined by collective agreement – Employer’s sole or main purpose in making offers must be to achieve that prohibited result – S.145D: to determine sole or main purpose you must look at certain background issues
  17. 17. Kostal v Dunkley (AB 655) • Collective pay negotiations stalled • Employer offered pay rise and Christmas bonus to cover that year, on individual basis • Held: breach of s.145B, even though collective bargaining would continue in long term • Award: £7600 each (2 x offers of £3800) • Expect an appeal • That award is now £4,059 per employee
  18. 18. Capita v Ali (AB 658) • Male employee, got 2 weeks paid paternity leave, comparator female gets 14 weeks OMP • He argued 2 weeks after birth either parent could care for child and sought enhanced pay • ET held direct sex discrimination • EAT held purpose of shared parental leave different to maternity leave • Correct comparator a woman on shared parental leave
  19. 19. What next? Brexit • What do we know? – DExEU July 2017 paper – EU workers’ rights will continue to be available – ECJ decisions prior to exit will have same precedent status as Supreme Court decisions (Supreme Court could overturn, but rarely happens) – Subsequent ECJ decisions will have same status as other foreign judgments
  20. 20. What next? Brexit • Potential areas of reform? – TUPE: post-transfer changes to terms and conditions – Agency Workers Regulations – Tweaking working time rights: holiday pay and 48- hour week • Wider factors – Gig economy etc
  21. 21. What next? Taylor review • Taylor review looked at • Status: employer/worker/self employed • Agency workers: remove Swedish derogation • Zero-hours contracts: higher rate of pay for non-guaranteed hours • Consistency in tax treatment/state benefits • Improve transparency
  22. 22. Taylor review: Government response • Series of consultations – Clarity on employee/worker/self employed status – Improving transparency – Agency workers – Enforcement of employment rights • Immediate plans – Payslips: specify hours/rates worked, if relevant – Higher penalties for aggravated breach: £20K
  23. 23. QUESTIONS support/workforce-and-hr- support/employment-relations