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Chloe Themistocleous, Associate
Eversheds Sutherland (International) LLP
Legislative update
Eversheds Sutherland | 23 January 2020 |
− Change aimed at ensuring workers in seasonal or atypical
roles receive paid time off to which they are entitled
− Where worker has been employed by their employer for at
least 52 weeks, reference period for calculating holiday pay is
increased from 12 to 52 weeks
• Disregard weeks in which worker did not work or receive pay
• Cap of 104 weeks cap i.e. not necessary to go back any further
than 104 weeks to find relevant weeks of pay, instead use only
number of weeks worked within that period
− Where worker has been employed for fewer than 52 weeks,
reference period will be actual number of weeks for which
worker has been employed
Holiday Pay – Calculations / reference periods
2
Legislative changes effective 6 April 2020
Eversheds Sutherland | 23 January 2020 |
Legislative changes effective 6 April 2020
Changes to terms
Written
statement of
terms (s1
statement)
Becomes a day 1 right: majority* of written particulars will need to be provided in a single
document on or before commencement date; no minimum service requirement (currently 1
month)
*Possible for required particulars relating to pensions, collective agreements and any training
entitlement to be given within 2 months
Right extended to non-employee workers
Expansion of information required in written statement to include:
• Days of week the worker is required to work and whether working hours or days may be
variable, with details of how they may vary;
• Any other paid leave to which worker is entitled;
• Any other remuneration or benefits provided by the employer (i.e. in addition to pay);
• Any probationary period, including any conditions and its duration;
• Any training provided by employer which worker is required to complete and any other
required training in respect of which employer will not bear the cost
Eversheds Sutherland | 23 January 2020 |
Legislative changes effective 6 April 2020
Changes to terms
Written
statement of
terms (s1
statement)
New-style written statement needed for employees and workers starting new roles 6 April
2020 onwards
Where, after 6 April, there is a change in any employment particulars required to be given
under new rules, employer must provide existing employees with written statement containing
details of change
Must also supply (within 1 month) revised version written statement to any existing (i.e. pre-6
April) employee who requests it
Existing workers have no right to request written statement, but anticipated Govt guidance
likely to suggest good practice to provide
Practical issues?
• Most employers incorporate s1 information in employment contract – will need to review
and update existing templates e.g. do yours currently address training provision?
• Compliance with s1 requirements may be more challenging for casual and zero hours
workers? (e.g. specifying holiday entitlement)
• How to deal with particulars which are incompatible with worker status e.g. discipline and
grievance procedure?
• Will this new obligation risk further blurring the boundaries between employee and worker
status e.g. when identifying “benefits”?
Eversheds Sutherland | 23 January 2020 |
Agency workers
─ The Agency Workers Regulations will remove the
Swedish derogation provisions (giving right to pay parity
after 12 weeks).
─ By no later than 30 April 2020, temporary work agencies
must provide agency workers whose existing contracts
contain a Swedish derogation provision with a written
statement advising that, with effect from 6 April 2020,
those provisions no longer apply.
─ Employment businesses will need to provide a key
information document, including information such as the
type of contract under which the work-seeker will be
engaged, the minimum rate of pay, any deductions that
will be made to their pay, how they will be paid and by
whom, and annual leave entitlement
Eversheds Sutherland | 23 January 2020 |
− The Act will give all employed parents a statutory right
to two weeks' leave if they lose a child under the age of
18, or suffer a stillbirth from 24 weeks of pregnancy.
− Employed parents will also be able to claim statutory
parental bereavement pay for this period, if they meet
the relevant eligibility criteria.
− Leave must be taken within 56 days of the child's death.
Parental Bereavement (Leave and Pay) Act 2018
Parental bereavement leave
6
Eversheds Sutherland | 23 January 2020 |
− Tax and deduct NICS for all unworked notice payments;
− other payments - basic rule – anything over 30K is taxed
(unless there is an exception – death, injury, disablement,
injury to feelings);
− From 6 April 2020 – class 1A NICs will also have to be paid
on any anything over 30K;
− Aligning tax and NIC payments;
− Making termination more expensive for employers and giving
less negotiation ground; and
− Getting it wrong – HMRC can recover tax, NICs, penalties and
interest
Tax on termination payment
7
Practical planning
The “B” word
Eversheds Sutherland | 23 January 2020 |
Brexit and immigration: What’s Happening?
In view of the agreement between the UK and
European Commission, free movement between
EEA countries and the UK will end
The current
arrangements will
remain until the
UK leaves the
European Union,
with a form of
free movement
likely to be
retained until
January 2021
“Settled Status”
applications will
be necessary for
all EEA citizens
(other than Irish
citizens) between
2019 and 30th
June 2021
A new immigration
system will apply
to EEA citizens
travelling to the
UK from 1st
January 2021,
with British
citizens required
to meet
immigration
requirements in
each EEA country.
Eversheds Sutherland | 23 January 2020 |
1. Identifying who is affected
How are organisations planning?
─ Are EEA workers
already identified by
HR record-keeping
(often that
information is not
readily available) ?
─ If not, how will you
do that?
─ Assessing roles and
importance of
individuals who are
EEA citizens
Eversheds Sutherland | 23 January 2020 |
2. Assessing Recruitment and Retention of staff
How are organisations planning?
─ Are fewer candidates from the EEA applying for roles
since the Brexit referendum or more recent period of
uncertainty?
─ Are current staff leaving?
• assessing reasons (personal/practical/perception reasons)
• addressing any issues raised from feedback
Eversheds Sutherland | 23 January 2020 |
Are any areas of your operations
particularly vulnerable?
If so:
3. Where are the long-term skill gaps?
How are organisations planning?
─ how could those workers be
persuaded to stay?
─ what would be the alternatives to
EEA workers?
─ could the gap be addressed by
proposed future immigration
changes anyway?
Eversheds Sutherland | 23 January 2020 |
Support and Communications
How are organisations planning?
─ Misapprehensions about Brexit are widespread
• some EEA employees still believe there are consequences to
Brexit which, in reality, are not likely
─ Is there a statement on your website about Brexit?
─ How will you communicate information about Brexit to staff?
─ Publish FAQs?
─ Ongoing help from HR?
Eversheds Sutherland | 23 January 2020 |
What’s on the horizon?
14
Eversheds Sutherland | 23 January 2020 |
Queen speech – key points
─ Employment Bill to include:
• require all tips to be passed to workers ensuring fair and transparent
distribution;
• right to request more predictable contract (to inc right to reasonable notice
of work schedules and compensation shifts cancelled at short notice)
• right to extended leave for neonatal care; and
• right for reasonable alternative job in redundancy extended to 6 months
post return from maternity/adoption leave.
─ Further consultation on making flexible working the default;
• consultation on whether large companies should be required to publish
family friendly policies; and
• whether family leave and pay laws should be reviewed of scrapped
completely and a new system put in place.
Eversheds Sutherland | 23 January 2020 |
… coming soon!
Ethnicity pay reporting
─ Govt consultation from 11 October 2018 – 11 January 2019; response
awaited
─ Sought views on questions relating to 3 broad areas:
1.context of reporting i.e. thresholds, whether contextual data should be included,
mandatory action plans?
2.ethnicity classifications
3.next steps and govt support
─ Objective that any pay reporting process should be “proportionate and
not cause undue additional burdens on business”
─ May’s Govt was keen to introduce legislation promptly, but current
political uncertainties likely to cause delay – large employers will
continue to face pressure to report voluntarily
Eversheds Sutherland | 23 January 2020 |
Key issues – scope of reports
Ethnicity pay reporting
─ Potential reporting options:
• One pay gap figure comparing average hourly earnings of ethnic minority
employees as a percentage of white employees
• Several pay gap figures comparing average hourly earnings of different
groups of ethnic minority employees as a percentage of white employees
• Ethnicity pay information by pay band or quartile, showing the proportion
of employees from different ethnic groups by £20,000 pay bands or by pay
quartiles
─ Supporting or contextual data?
─ Narrative or action plan - unlikely to be mandatory but
potentially helpful
─ Problems collecting data
Eversheds Sutherland | 23 January 2020 |
Any Questions?
Jenny Mann, Principal Associate
Eversheds Sutherland (International) LLP
Whistleblowing, Sexual Harassment and Non-
Disclosure Agreements
Eversheds Sutherland | 23 January 2020 |
Whistleblowing
Protected disclosure:
Disclosure of information that, in the reasonable belief of the
worker, tends to show that one of following has occurred, is
occurring, or is likely to occur:
─ A criminal offence.
─ Breach of any legal obligation.
─ Miscarriage of justice.
─ Danger to the health and safety of any individual.
─ Damage to the environment.
─ The deliberate concealing of information about any of the
above.
For disclosures made on or after 25 June 2013, worker must
reasonably believe the disclosure is "in the public interest“
Dismissals automatically unfair and any detrimental treatment
unlawful if principal reason is protected disclosure
Eversheds Sutherland | 23 January 2020 |
Sexual Harassment
─ A engages in unwanted conduct of a sexual nature;
and
─ The conduct has the purpose or effect of either
violating B’s dignity, or creating an intimidating, hostile,
degrading, humiliating or offensive environment for B.
Eversheds Sutherland | 23 January 2020 |
• Movement against sexual harassment
• Aim is to raise awareness and encourage people to
speak out and take action
• Began in October 2017 following Harvey Weinstein
allegations
• Has the support of high profile female celebrities
• Resulted in increased media attention and an increase in
allegations being raised including historical matters
#MeToo
22
Eversheds Sutherland | 23 January 2020 | 23
Eversheds Sutherland | 23 January 2020 |
Discussion point
─ What are your thoughts on why, historically,
workplace sexual harassment has been under-
reported?
“Four in five women did not report the sexual
harassment to their employer”¹
¹“Still just a bit of banter? Sexual harassment in the workplace
in 2016”, TUC in association with Everyday Sexism Project
24
Extent of the issue?
Source: “Still just a bit of banter? Sexual harassment in the
workplace in 2016”, TUC in association with Everyday Sexism
Project
52% of women have
experienced some
form of sexual
harassment at work
35% of women have
heard comments of a
sexual nature being
made about other
women in the
workplace
32% of women have
been subject to
unwelcome jokes of a
sexual nature at work
28% of women have
been subject to
comments of a sexual
nature about their
body or clothes at
work
23% of women have
experienced unwanted
touching at work e.g.
hand on knee or lower
back
12% of women have
experienced unwanted
sexual touching or
attempts to kiss them
at work
20% of women have
experienced unwanted
verbal sexual
advances at work
Eversheds Sutherland | 23 January 2020 |
NDAs
SRA warning notice
EHRC Report
EHRC technical guidance – 15 January 2020
Sexual Harassment Statutory Code of Practice?
Eversheds Sutherland | 23 January 2020 |
The law
“Protected characteristics”
 age
 disability
 gender reassignment
 marriage and civil partnership
 pregnancy and maternity
 race (colour, nationality, ethnic or national origin)
 religion or belief
 sex
 sexual orientation
Eversheds Sutherland | 23 January 2020 |
Main types of discrimination
─ Direct Discrimination
─ Indirect Discrimination
─ Harassment
─ Victimisation
28
Eversheds Sutherland | 23 January 2020 |
The law
Harassment
Alice harasses Bob if:
 Alice engages in unwanted conduct related to a protected
characteristic; and
 the conduct has the purpose or effect of:
 violating Bob’s dignity or
 creating an intimidating, hostile, degrading, humiliating or
offensive environment for Bob
 Conduct can be:
 saying something
 not saying something or not saying anything
 doing something
 not doing something
 Do not need to say conduct is unwanted
 “Reasonable” for conduct to have that effect
Eversheds Sutherland | 23 January 2020 | 30
─ L was “resilient person” driven to mental breakdown by colleagues – suffering from
moderately severe psychiatric illness and unfit to work since Jan 2012
─ Amongst other things, colleagues falsely accused her of being cocaine addict and told
her she had only been hired because of her t***.
─ Manager sent emails and made remarks that were “offensive and derogatory, and often
personal in nature”
─ Manager not disciplined; left bank one year after L resigned and received $250k settlement
─ ET awarded:
• just over £3m loss of earnings;
• £44k injury to feelings
Gender-based harassment, sex discrimination, victimisation
Lokhova v Sberbank CIB, ET, 2015
Eversheds Sutherland | 23 January 2020 |
AA Solicitors Ltd (t/a AA Solicitors) v Majid
─ M was a young woman who was an aspiring lawyer
─ She obtained employment at employer's firm which was run by a sole male
practitioner
─ ET found he had committed approximately 40 acts of sexual harassment –
comments and physical touching
─ M rejected his advances and was made redundant 6 weeks after
commencing employment
─ ET found: the redundancy was not on genuine grounds and that she had
been subjected to sex discrimination and sexual harassment
─ It awarded £14,000 for injury to feelings and approximately £2,000 for loss
of earnings
31
Sexual harassment, direct discrimination, victimisation
Eversheds Sutherland | 23 January 2020 |
What is banter?
“The playful and friendly exchange of teasing remarks”*
 playful = fun
 friendly = nice
 exchange = two-way
 teasing = ?
*Source: Oxford English Dictionary
Eversheds Sutherland | 23 January 2020 |
Banter Bingo
Eversheds Sutherland | 23 January 2020 |
“Those clothes really show off your figure”
Example 1
34
Eversheds Sutherland | 23 January 2020 |
“When is the baby due?”
Example 2
35
Eversheds Sutherland | 23 January 2020 |
“Where are you originally from?”
Example 3
36
Eversheds Sutherland | 23 January 2020 |
“Take that thing off, we don’t allow hats”
Example 4
37
Eversheds Sutherland | 23 January 2020 |
“If you don't like it, go back to your own country”
Example 5
38
Eversheds Sutherland | 23 January 2020 |
“Is there a number I can contact you on
after office hours if I need to discuss this further?”
Example 7
39
Eversheds Sutherland | 23 January 2020 |
“Do you fancy a beer after work”
Example 8
40
Eversheds Sutherland | 23 January 2020 |
Any Questions?
Mark Hammerton, Partner
Eversheds Sutherland (International) LLP
IR35
Eversheds Sutherland | 23 January 2020 |
What is IR35 ?
Setting the scene
Off-payroll working
─ IR35 is tax legislation designed to stop ‘disguised employment’
─ it is aimed at workers who provide their services via intermediaries, typically
their own personal service company (“PSC”), who would be regarded as
employees if engaged directly
─ where the worker is genuinely self employed providing their services via
their PSC allows them to pay less tax as they will be paid less than the basic
rate threshold by their PSC avoiding employment income tax and will receive
large dividends from their PSC on which there is lower income tax and no
NICs
─ where the IR35 rules apply the worker pays broadly the same employment
taxes as they would if they were an employee
43
Off-payroll working
Question
Eversheds Sutherland | 23 January 2020 |
True or False?
Setting the scene
Off-payroll working
Harriet has an agreement with an infrastructure company to provide design
services. She is caught by IR35?
45
Eversheds Sutherland | 23 January 2020 |
Setting the scene
Off-payroll working
─ Now – 2 sets of rules:
1. private sector – B is required to determine the employment status of A for income tax
purposes and make appropriate income tax and NIC deductions on earnings from C if
the IR35 rules apply; and
2. public sector - C is required to determine the employment status of A and is required
to deduct the income tax and NICs from the fees it pays to B (if C contracts with B).
─ From 6 April 2020 – there will still be 2 sets of rules:
1. small private organisations – the current rules for the private sector will apply; and
2. medium/large private and all public organisations – it is proposed that C will be
required to:
• determine whether A has deemed employment status for income tax purposes
• communicate the determination, with reasons to A and the person it contracts with for
A
• have in place, and comply with, a status disagreement process
• if IR35 applies, deduct and pay A’s employment taxes (if C contracts with B)
B=PSC C=ClientA=
Eversheds Sutherland | 23 January 2020 |
Timeline
Setting the Scene
Off-payroll working
─ 11 July 2019 – draft legislation issued
─ 5 September 2019 – consultation on draft legislation closed
─ August 2019 – guidance issued by HMRC
─ Winter 2019 – updated CEST tool
─ January post-election review
─ March 2020 – new legislation should receive Royal Assent (?)
─ 6 April 2020 – new legislation will become effective (?)
47
Eversheds Sutherland | 23 January 2020 |
Setting the scene
Employm
ent
status
Deemed
employm
ent
status -
tax
Same
or
differe
nt?
48
Off-payroll working
Eversheds Sutherland | 23 January 2020 |
Source: Off-payroll working rules from April 2020: Factsheet, HM Treasury
49
Scope: what is in/out of scope?
Eversheds Sutherland | 23 January 2020 |
Scope
Off-payroll working
─ When do the new IR35 rules not apply? For example:
• A = genuinely self-employed ie their services are not provided via B
• A is not deemed to be an employee of C
• an agency/third party directly employs A
• C has fully contracted out services – no personal service
• the intermediary fails to satisfy one of three Chapter 10 ITEPA 2003
conditions (such as: A has no material interest in B)
• NB: some particular sector arrangements apply (eg. construction)
─ The small employer exemption:
• if small companies regime under the Companies Act 2006 applies
• what if companies grow or reduce in size?
• what of JVs, subsidiaries, unincorporated organisations ?
51
Determining deemed employment status
Eversheds Sutherland | 23 January 2020 |
Determining deemed employment status
Client must:
• Determine the employment status of the worker for tax purposes
• Issue a status determination statement (SDS)
• Explain reasons for the status determination in the SDS
• Exercise reasonable care in so doing
• Give the SDS to the worker, A, and the 3rd party C contracts
Timing of the SDS?
Each additional party must pass the SDS down the chain
Using the CEST tool / HMRC guidance
53
Operating a status disagreement process
Eversheds Sutherland | 23 January 2020 |
Operating a status disagreement process
Client must:
• Establish a “client-led status disagreement process”
(SDP)
• Apply the SDP if A, the worker, or the deemed
employer, (ie the person that pays B) disagrees with the
SDS
• Reconsider the worker’s employment status in light of
the worker/deemed employer’s representations and
respond within 45 days of receiving the disagreement
• If it determines that its original determination is correct,
inform the person who raised the grievance giving
reasons
• If it determines that its original determination was
wrong, issue a new SDS to the worker and deemed
employer
56
Liabilities from April 2020
Off-payroll working
Question
Eversheds Sutherland | 23 January 2020 |
True or False?
Setting the scene
Off-payroll working
As long as Client has issued an SDS it can never be liable for any unpaid tax?
59
Eversheds Sutherland | 23 January 2020 |
Transfer of liability – incentivising compliant supply chains
Off-payroll working
─ Currently, the basic principle is that the party paying B, the
PSC, is liable for deducting and paying employment taxes
to HMRC (some exceptions, eg offshore fee payers)
─ From 6 April 2020, the client will become liable if it:
• fails to provide compliant SDS (including exercising reasonable care in
determining the status of the worker) to the worker and contracting
party, or
• fails to comply with SDP
─ From 6 April 2020, another party in supply chain will
become liable if it:
• fails to cascade SDS to next party in supply chain
─ Proposed that HMRC will have power to recover unpaid
employment taxes from others in supply chain, such as
first agency at top of chain or client, where party
responsible for making such payments fails to do so
─ Awaiting publication of amended PAYE Regs/HMRC
guidance
Practical implications
Eversheds Sutherland | 23 January 2020 |
What are the key risks?
Client liable for making Status Determination Statements
and operating Status Disagreement Process
Fee Payer liable for paying employment taxes for workers
with deemed employment tax status
Anti-avoidance measures: Client could become Fee Payer
and liable for employment taxes in certain circumstances
63
Off-payroll working
Question
Eversheds Sutherland | 23 January 2020 |
True or False?
Setting the scene
Off-payroll working
From 6 April 2020, it is unlawful to use a PSC?
65
Eversheds Sutherland | 23 January 2020 |
Client action planning
Off-payroll working
Act now – existing
contracts will have
notice periods which
will affect lead
times
Audit current use of
off-payroll workers
& assess supply
chain providers
Check contractual
terms; consider
indemnities
Review business
case for continuing
to use PSCs
Budget for
potentially
increased costs
Collate information
which will form
basis of SDS
Train relevant
employees in
preparing SDS
Implement SDP
meeting HMRC
standards and time
line
Beware unjustifiable
blanket
determinations
Consider data
protection
implications
Prepare
procurement,
invoicing, policies
and payroll
processes
Eversheds Sutherland | 23 January 2020 |
Our services
Off-payroll working
Template SDS
and SDP
A guide to
CEST and its
pitfalls
Tax and data
protection
advice
Review of
workforce
engagement
Client IR35
Q&A, In-house
and public
training
Commercial
contract
advice/drafting
67
Eversheds Sutherland | 23 January 2020 |
Your Questions?
68
Jenny Mann, Principal Associate
Eversheds Sutherland (International) LLP
Chloe Themistocleous, Associate
Eversheds Sutherland (International) LLP
Case law update
Eversheds Sutherland | 23 January 2020 |
Does the employment tribunal have the power to remove
judgments from the online register?
Question
Eversheds Sutherland | 23 January 2020 |
NO
Ameyaw v PWC (EAT)
FACTS
 Preliminary Hearing judgment was very critical of Ms A’s
behaviour (disruptive to proceedings).
 Ms A applied for the claim to be taken offline alleged it
breached GDPR and her right to privacy or for an for anonymity
order
 The ET refused the applications and Ms A appealed to the EAT
DECISION
 General rule - employment tribunal has no power to withhold
judgments from the public register other than in some very
limited circumstances (such as national security)
 No expectation of privacy in respect preliminary hearing –
Article 8 ECHR not engaged.
Answer
71
Eversheds Sutherland | 23 January 2020 |
Did covert surveillance of employees under suspicion of
theft breach their Article 8 right to private life?
Question
Eversheds Sutherland | 23 January 2020 |
NO
Lopez Ribalda & others v Spain (ECHR)
FACTS
 Employer installed covert video surveillance in its supermarket where there was high
levels of theft occurring.
 The recordings were limited to two weeks and confined to a small group of individuals
 Employees were not told about this.
DECISION
 Employees should have a limited expectation of privacy at work, especially on a
supermarket floor.
 The employer had taken steps to confine the period and circulation of recordings.
 The intrusion was proportionate fair balance had been struck between employer need and
Employee rights.
Answer
73
Eversheds Sutherland | 23 January 2020 |
Are homophobic remarks about hypothetically not hiring
LGBT people unlawful?
Question
Eversheds Sutherland | 23 January 2020 |
YES
Opinion of Advocate General Sharpston in NH v Associazione Avvocatura
per i diritti LGBTI
FACTS
 A senior lawyer remarked on Italian radio that he would never recruit a homosexual to
his law firm – no active recruitment was ongoing at the time.
 An association for LGBT lawyers in Italy brought proceedings alleging discrimination
and seeking remedies including a press retraction, action to eliminate discrimination
and damages
DECSION
 The claim won at first instance, was upheld on appeal and an award of 10,000 Euros in
damages. The Supreme Court made a reference to the CJEU and asked in the absence
of a direct victim did an association have standing and could a hypothetical statement
fall within the Equal Treatment Directive which pertains only to employment?
 The Advocate General considered that since such statements might discourage people
in a protected group from applying for jobs in law it did fall within the scope of
the Directive. It is for national law to determine if an association has a legitimate
interest. If they do, discriminatory conduct should be sanctioned in an effective,
proportionate and dissuasive manner including damages.
 This Opinion is not binding on the CJEU, but in most cases the CJEU will follow the
Advocate General's Opinion
Answer
75
Eversheds Sutherland | 23 January 2020 |
If a manager lies, in good faith, about the reason for
dismissal, is that enough to shift the burden of proof in a
discrimination case?
Question
Eversheds Sutherland | 23 January 2020 |
YES
Base Childrenswear v Otshudi (CA)
FACTS
 Ms O was made redundant and she believed this was because of her race
 The employer stated the reason for redundancy as being “purely financial”
but later amended its ET3 to include a suggestion that the employee was
possibly stealing clothing
 The adapted reason for redundancy was intended by the manager to
“minimise potential confrontation” with the employee
DECISION
 Both the ET and EAT held that the manager’s persistence in lying about the
real reason for the employee’s dismissal formed the basis of a prima facie
case of race discrimination, shifting the burden of proof to the employer (on
which they failed to show that race played no part in her dismissal).
 Whilst the manager may have had a genuine belief that she was stealing,
this was based on a stereotypical prejudice he held (consciously or
otherwise) against black people.
Answer
77
Eversheds Sutherland | 23 January 2020 |
Was a tribunal entitled to find that a Claimant was NOT
subject to religious discrimination because he was
dismissed for the manner in which he expressed his
beliefs, rather than for the beliefs themselves?
Question
Eversheds Sutherland | 23 January 2020 |
YES
Page v NHS Trust Development Authority (EAT)
FACTS
 The Claimant was dismissed from his role as non exec Director
following two televised interviews in which he expressed the view
that, because of his Christian beliefs, adoption by a same-sex
couple could not be in the best interests of the child and was not
normal.
DECISION
 The dismissal was held to be not because of the Claimant’s faith
but rather because:
• (a) he had spoken to the media without informing the Trust; and
• (b) did so in the knowledge that his conduct would likely have an
adverse effect on the Trust’s ability to engaged with sections of the
community it served
• This was a finding of fact which could not be said to be perverse.
Answer
79
Eversheds Sutherland | 23 January 2020 |
Any Questions?
Mark Hammerton, Partner
Eversheds Sutherland (International) LLP
ICE Regulations
Eversheds Sutherland | 23 January 2020 |
Information and
consultation
82
Eversheds Sutherland | 23 January 2020 |
Changes under the Good Work Plan (December 2018)
─ Voice and Autonomy
─ The Government believes that high levels of employee engagement improve
organisational performance and productivity, and lead to more fulfilling work
83
Eversheds Sutherland | 23 January 2020 |
ICE Regulations
─ Threshold required for a request to set up information and consultation
arrangements lowered from 10% to 2% of employees
─ This will be subject to the existing minimum of 15 employees
─ Regulations have been made, which will implement this change from 6 April
2020
─ ICE Regulations 2004
─ Apply to undertakings
─ Would need to be company wide
─ Default:-
• inform on recent and probable developments … and measures affecting future
employment and to be consulted “with a view to reaching agreement”
84
Eversheds Sutherland | 23 January 2020 |
ICE Regulations (Cont’d)
─ Representative right to time off and detriment right
─ Union increased interest?
─ Penalty is a £75,000 fine
─ CAC declaration – sequestration/directors liability
85
Eversheds Sutherland | 23 January 2020 |
ICE Regulations (Cont’d)
─ Options
• monitor and deal “ad-hoc”
• bolster informal arrangements
• review structures
• introduce pre-existing agreement(s)
• commence negotiations
• do not comply
86
Eversheds Sutherland | 23 January 2020 |
Corporate Governance Code 2018
─ Fully listed companies
─ Employee engagement via:-
• designated NED
• employee advisory council
• workforce director
─ Lukewarm response
─ Capita/FirstGroup
─ Holistic ER strategy required
87
Eversheds Sutherland | 23 January 2020 |
Your Questions?
88
working for everyone
to promote health and wellbeing at work
Mental health in the
workplace
Good Practice and the Law
James Boffey
Section 4
Managing mental health related
issues
Recruitment
1Adult Psychiatric Morbidity Survey 2014
2 Psychiatric Services. 2007
Chloe is the best
candidate, but at the end
of the interview she told
me she suffers from
depression.
Is she worth the risk?
Performance management
Chris is being very awkward
about the new hot-desking
arrangements. At his
performance review I raised
this with him – he now says
its because of his OCD
Disciplinary meetings
I had a disciplinary
meeting with Josh
booked in for this
morning, but he’s rung in
sick. Says he has a
doctor’s note for work-
related stress.
What action should you
take?
Promotion
A promotion
opportunity has come
up. I need someone
with lots of energy so
have insisted the
person has a “positive
mental outlook”.
What’s wrong with this
description?
Day to day management
Ranjit experiences
psychosis. The medication
he takes makes him very
tired and so he has asked if
he can only work later shift
times.
What factors should you
consider?
Relationships and team dynamics
Maud suffers from anxiety and
depression. She’s been off for
4 months but is back
tomorrow. Some of the team
refer to her as ‘Moody Maud’.
How could you help her to
successfully return to work?
Absence and return to work
Barbara has
Bipolar Disorder. She’s been
off for six months and her
sickness cover has elapsed.
I’ve done everything I can to
help her.
Key points to consider in this
situation?
Acas Framework
Acas Framework for positive mental health at work
Acas Framework for positive mental health at work
Acas Framework for positive mental health at work
Contact me directly
• jboffey@acas.org.uk
• Tel: 0330 109 3338 Mob: 07701 372 880
• Twitter: @james_boffey
• LinkedIn.com/in/jboffey
eversheds-sutherland.com
This information pack is intended as a guide only. Whilst the information it contains
is believed to be correct, it is not a substitute for appropriate legal advice.
Eversheds Sutherland (International) LLP can take no responsibility for actions
taken based on the information contained in this pack.
© Eversheds Sutherland 2017. All rights reserved. CAR_LIB1-#13057506CAR_LIB1-#13057506CAR_LIB1-#13057506MAN_002-#7143200
Eversheds House
70 Great Bridgewater Street
Manchester
M1 5ES
MAN_002-#7143200MAN_002-#7143200MAN_002-#7143200MAN_002-#7147762MAN_002-#7147762MAN_002-#7147762MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7694959MAN_002-#7694959MAN_002-#7694959MAN_002-#7694959MAN_002-#7694959MAN_002-#7694959MAN_002-#7694959MAN_002-#7948624MAN_002-#7948624MAN_002-#9341977MAN_002-#9341977
Eversheds Sutherland | 23 January 2020 |
Eversheds Sutherland | 23 January 2020 |
Eversheds Sutherland | 23 January 2020 |

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Annual Employment Law Masterclass 2020

  • 1. Chloe Themistocleous, Associate Eversheds Sutherland (International) LLP Legislative update
  • 2. Eversheds Sutherland | 23 January 2020 | − Change aimed at ensuring workers in seasonal or atypical roles receive paid time off to which they are entitled − Where worker has been employed by their employer for at least 52 weeks, reference period for calculating holiday pay is increased from 12 to 52 weeks • Disregard weeks in which worker did not work or receive pay • Cap of 104 weeks cap i.e. not necessary to go back any further than 104 weeks to find relevant weeks of pay, instead use only number of weeks worked within that period − Where worker has been employed for fewer than 52 weeks, reference period will be actual number of weeks for which worker has been employed Holiday Pay – Calculations / reference periods 2 Legislative changes effective 6 April 2020
  • 3. Eversheds Sutherland | 23 January 2020 | Legislative changes effective 6 April 2020 Changes to terms Written statement of terms (s1 statement) Becomes a day 1 right: majority* of written particulars will need to be provided in a single document on or before commencement date; no minimum service requirement (currently 1 month) *Possible for required particulars relating to pensions, collective agreements and any training entitlement to be given within 2 months Right extended to non-employee workers Expansion of information required in written statement to include: • Days of week the worker is required to work and whether working hours or days may be variable, with details of how they may vary; • Any other paid leave to which worker is entitled; • Any other remuneration or benefits provided by the employer (i.e. in addition to pay); • Any probationary period, including any conditions and its duration; • Any training provided by employer which worker is required to complete and any other required training in respect of which employer will not bear the cost
  • 4. Eversheds Sutherland | 23 January 2020 | Legislative changes effective 6 April 2020 Changes to terms Written statement of terms (s1 statement) New-style written statement needed for employees and workers starting new roles 6 April 2020 onwards Where, after 6 April, there is a change in any employment particulars required to be given under new rules, employer must provide existing employees with written statement containing details of change Must also supply (within 1 month) revised version written statement to any existing (i.e. pre-6 April) employee who requests it Existing workers have no right to request written statement, but anticipated Govt guidance likely to suggest good practice to provide Practical issues? • Most employers incorporate s1 information in employment contract – will need to review and update existing templates e.g. do yours currently address training provision? • Compliance with s1 requirements may be more challenging for casual and zero hours workers? (e.g. specifying holiday entitlement) • How to deal with particulars which are incompatible with worker status e.g. discipline and grievance procedure? • Will this new obligation risk further blurring the boundaries between employee and worker status e.g. when identifying “benefits”?
  • 5. Eversheds Sutherland | 23 January 2020 | Agency workers ─ The Agency Workers Regulations will remove the Swedish derogation provisions (giving right to pay parity after 12 weeks). ─ By no later than 30 April 2020, temporary work agencies must provide agency workers whose existing contracts contain a Swedish derogation provision with a written statement advising that, with effect from 6 April 2020, those provisions no longer apply. ─ Employment businesses will need to provide a key information document, including information such as the type of contract under which the work-seeker will be engaged, the minimum rate of pay, any deductions that will be made to their pay, how they will be paid and by whom, and annual leave entitlement
  • 6. Eversheds Sutherland | 23 January 2020 | − The Act will give all employed parents a statutory right to two weeks' leave if they lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy. − Employed parents will also be able to claim statutory parental bereavement pay for this period, if they meet the relevant eligibility criteria. − Leave must be taken within 56 days of the child's death. Parental Bereavement (Leave and Pay) Act 2018 Parental bereavement leave 6
  • 7. Eversheds Sutherland | 23 January 2020 | − Tax and deduct NICS for all unworked notice payments; − other payments - basic rule – anything over 30K is taxed (unless there is an exception – death, injury, disablement, injury to feelings); − From 6 April 2020 – class 1A NICs will also have to be paid on any anything over 30K; − Aligning tax and NIC payments; − Making termination more expensive for employers and giving less negotiation ground; and − Getting it wrong – HMRC can recover tax, NICs, penalties and interest Tax on termination payment 7
  • 9. Eversheds Sutherland | 23 January 2020 | Brexit and immigration: What’s Happening? In view of the agreement between the UK and European Commission, free movement between EEA countries and the UK will end The current arrangements will remain until the UK leaves the European Union, with a form of free movement likely to be retained until January 2021 “Settled Status” applications will be necessary for all EEA citizens (other than Irish citizens) between 2019 and 30th June 2021 A new immigration system will apply to EEA citizens travelling to the UK from 1st January 2021, with British citizens required to meet immigration requirements in each EEA country.
  • 10. Eversheds Sutherland | 23 January 2020 | 1. Identifying who is affected How are organisations planning? ─ Are EEA workers already identified by HR record-keeping (often that information is not readily available) ? ─ If not, how will you do that? ─ Assessing roles and importance of individuals who are EEA citizens
  • 11. Eversheds Sutherland | 23 January 2020 | 2. Assessing Recruitment and Retention of staff How are organisations planning? ─ Are fewer candidates from the EEA applying for roles since the Brexit referendum or more recent period of uncertainty? ─ Are current staff leaving? • assessing reasons (personal/practical/perception reasons) • addressing any issues raised from feedback
  • 12. Eversheds Sutherland | 23 January 2020 | Are any areas of your operations particularly vulnerable? If so: 3. Where are the long-term skill gaps? How are organisations planning? ─ how could those workers be persuaded to stay? ─ what would be the alternatives to EEA workers? ─ could the gap be addressed by proposed future immigration changes anyway?
  • 13. Eversheds Sutherland | 23 January 2020 | Support and Communications How are organisations planning? ─ Misapprehensions about Brexit are widespread • some EEA employees still believe there are consequences to Brexit which, in reality, are not likely ─ Is there a statement on your website about Brexit? ─ How will you communicate information about Brexit to staff? ─ Publish FAQs? ─ Ongoing help from HR?
  • 14. Eversheds Sutherland | 23 January 2020 | What’s on the horizon? 14
  • 15. Eversheds Sutherland | 23 January 2020 | Queen speech – key points ─ Employment Bill to include: • require all tips to be passed to workers ensuring fair and transparent distribution; • right to request more predictable contract (to inc right to reasonable notice of work schedules and compensation shifts cancelled at short notice) • right to extended leave for neonatal care; and • right for reasonable alternative job in redundancy extended to 6 months post return from maternity/adoption leave. ─ Further consultation on making flexible working the default; • consultation on whether large companies should be required to publish family friendly policies; and • whether family leave and pay laws should be reviewed of scrapped completely and a new system put in place.
  • 16. Eversheds Sutherland | 23 January 2020 | … coming soon! Ethnicity pay reporting ─ Govt consultation from 11 October 2018 – 11 January 2019; response awaited ─ Sought views on questions relating to 3 broad areas: 1.context of reporting i.e. thresholds, whether contextual data should be included, mandatory action plans? 2.ethnicity classifications 3.next steps and govt support ─ Objective that any pay reporting process should be “proportionate and not cause undue additional burdens on business” ─ May’s Govt was keen to introduce legislation promptly, but current political uncertainties likely to cause delay – large employers will continue to face pressure to report voluntarily
  • 17. Eversheds Sutherland | 23 January 2020 | Key issues – scope of reports Ethnicity pay reporting ─ Potential reporting options: • One pay gap figure comparing average hourly earnings of ethnic minority employees as a percentage of white employees • Several pay gap figures comparing average hourly earnings of different groups of ethnic minority employees as a percentage of white employees • Ethnicity pay information by pay band or quartile, showing the proportion of employees from different ethnic groups by £20,000 pay bands or by pay quartiles ─ Supporting or contextual data? ─ Narrative or action plan - unlikely to be mandatory but potentially helpful ─ Problems collecting data
  • 18. Eversheds Sutherland | 23 January 2020 | Any Questions?
  • 19. Jenny Mann, Principal Associate Eversheds Sutherland (International) LLP Whistleblowing, Sexual Harassment and Non- Disclosure Agreements
  • 20. Eversheds Sutherland | 23 January 2020 | Whistleblowing Protected disclosure: Disclosure of information that, in the reasonable belief of the worker, tends to show that one of following has occurred, is occurring, or is likely to occur: ─ A criminal offence. ─ Breach of any legal obligation. ─ Miscarriage of justice. ─ Danger to the health and safety of any individual. ─ Damage to the environment. ─ The deliberate concealing of information about any of the above. For disclosures made on or after 25 June 2013, worker must reasonably believe the disclosure is "in the public interest“ Dismissals automatically unfair and any detrimental treatment unlawful if principal reason is protected disclosure
  • 21. Eversheds Sutherland | 23 January 2020 | Sexual Harassment ─ A engages in unwanted conduct of a sexual nature; and ─ The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
  • 22. Eversheds Sutherland | 23 January 2020 | • Movement against sexual harassment • Aim is to raise awareness and encourage people to speak out and take action • Began in October 2017 following Harvey Weinstein allegations • Has the support of high profile female celebrities • Resulted in increased media attention and an increase in allegations being raised including historical matters #MeToo 22
  • 23. Eversheds Sutherland | 23 January 2020 | 23
  • 24. Eversheds Sutherland | 23 January 2020 | Discussion point ─ What are your thoughts on why, historically, workplace sexual harassment has been under- reported? “Four in five women did not report the sexual harassment to their employer”¹ ¹“Still just a bit of banter? Sexual harassment in the workplace in 2016”, TUC in association with Everyday Sexism Project 24
  • 25. Extent of the issue? Source: “Still just a bit of banter? Sexual harassment in the workplace in 2016”, TUC in association with Everyday Sexism Project 52% of women have experienced some form of sexual harassment at work 35% of women have heard comments of a sexual nature being made about other women in the workplace 32% of women have been subject to unwelcome jokes of a sexual nature at work 28% of women have been subject to comments of a sexual nature about their body or clothes at work 23% of women have experienced unwanted touching at work e.g. hand on knee or lower back 12% of women have experienced unwanted sexual touching or attempts to kiss them at work 20% of women have experienced unwanted verbal sexual advances at work
  • 26. Eversheds Sutherland | 23 January 2020 | NDAs SRA warning notice EHRC Report EHRC technical guidance – 15 January 2020 Sexual Harassment Statutory Code of Practice?
  • 27. Eversheds Sutherland | 23 January 2020 | The law “Protected characteristics”  age  disability  gender reassignment  marriage and civil partnership  pregnancy and maternity  race (colour, nationality, ethnic or national origin)  religion or belief  sex  sexual orientation
  • 28. Eversheds Sutherland | 23 January 2020 | Main types of discrimination ─ Direct Discrimination ─ Indirect Discrimination ─ Harassment ─ Victimisation 28
  • 29. Eversheds Sutherland | 23 January 2020 | The law Harassment Alice harasses Bob if:  Alice engages in unwanted conduct related to a protected characteristic; and  the conduct has the purpose or effect of:  violating Bob’s dignity or  creating an intimidating, hostile, degrading, humiliating or offensive environment for Bob  Conduct can be:  saying something  not saying something or not saying anything  doing something  not doing something  Do not need to say conduct is unwanted  “Reasonable” for conduct to have that effect
  • 30. Eversheds Sutherland | 23 January 2020 | 30 ─ L was “resilient person” driven to mental breakdown by colleagues – suffering from moderately severe psychiatric illness and unfit to work since Jan 2012 ─ Amongst other things, colleagues falsely accused her of being cocaine addict and told her she had only been hired because of her t***. ─ Manager sent emails and made remarks that were “offensive and derogatory, and often personal in nature” ─ Manager not disciplined; left bank one year after L resigned and received $250k settlement ─ ET awarded: • just over £3m loss of earnings; • £44k injury to feelings Gender-based harassment, sex discrimination, victimisation Lokhova v Sberbank CIB, ET, 2015
  • 31. Eversheds Sutherland | 23 January 2020 | AA Solicitors Ltd (t/a AA Solicitors) v Majid ─ M was a young woman who was an aspiring lawyer ─ She obtained employment at employer's firm which was run by a sole male practitioner ─ ET found he had committed approximately 40 acts of sexual harassment – comments and physical touching ─ M rejected his advances and was made redundant 6 weeks after commencing employment ─ ET found: the redundancy was not on genuine grounds and that she had been subjected to sex discrimination and sexual harassment ─ It awarded £14,000 for injury to feelings and approximately £2,000 for loss of earnings 31 Sexual harassment, direct discrimination, victimisation
  • 32. Eversheds Sutherland | 23 January 2020 | What is banter? “The playful and friendly exchange of teasing remarks”*  playful = fun  friendly = nice  exchange = two-way  teasing = ? *Source: Oxford English Dictionary
  • 33. Eversheds Sutherland | 23 January 2020 | Banter Bingo
  • 34. Eversheds Sutherland | 23 January 2020 | “Those clothes really show off your figure” Example 1 34
  • 35. Eversheds Sutherland | 23 January 2020 | “When is the baby due?” Example 2 35
  • 36. Eversheds Sutherland | 23 January 2020 | “Where are you originally from?” Example 3 36
  • 37. Eversheds Sutherland | 23 January 2020 | “Take that thing off, we don’t allow hats” Example 4 37
  • 38. Eversheds Sutherland | 23 January 2020 | “If you don't like it, go back to your own country” Example 5 38
  • 39. Eversheds Sutherland | 23 January 2020 | “Is there a number I can contact you on after office hours if I need to discuss this further?” Example 7 39
  • 40. Eversheds Sutherland | 23 January 2020 | “Do you fancy a beer after work” Example 8 40
  • 41. Eversheds Sutherland | 23 January 2020 | Any Questions?
  • 42. Mark Hammerton, Partner Eversheds Sutherland (International) LLP IR35
  • 43. Eversheds Sutherland | 23 January 2020 | What is IR35 ? Setting the scene Off-payroll working ─ IR35 is tax legislation designed to stop ‘disguised employment’ ─ it is aimed at workers who provide their services via intermediaries, typically their own personal service company (“PSC”), who would be regarded as employees if engaged directly ─ where the worker is genuinely self employed providing their services via their PSC allows them to pay less tax as they will be paid less than the basic rate threshold by their PSC avoiding employment income tax and will receive large dividends from their PSC on which there is lower income tax and no NICs ─ where the IR35 rules apply the worker pays broadly the same employment taxes as they would if they were an employee 43
  • 45. Eversheds Sutherland | 23 January 2020 | True or False? Setting the scene Off-payroll working Harriet has an agreement with an infrastructure company to provide design services. She is caught by IR35? 45
  • 46. Eversheds Sutherland | 23 January 2020 | Setting the scene Off-payroll working ─ Now – 2 sets of rules: 1. private sector – B is required to determine the employment status of A for income tax purposes and make appropriate income tax and NIC deductions on earnings from C if the IR35 rules apply; and 2. public sector - C is required to determine the employment status of A and is required to deduct the income tax and NICs from the fees it pays to B (if C contracts with B). ─ From 6 April 2020 – there will still be 2 sets of rules: 1. small private organisations – the current rules for the private sector will apply; and 2. medium/large private and all public organisations – it is proposed that C will be required to: • determine whether A has deemed employment status for income tax purposes • communicate the determination, with reasons to A and the person it contracts with for A • have in place, and comply with, a status disagreement process • if IR35 applies, deduct and pay A’s employment taxes (if C contracts with B) B=PSC C=ClientA=
  • 47. Eversheds Sutherland | 23 January 2020 | Timeline Setting the Scene Off-payroll working ─ 11 July 2019 – draft legislation issued ─ 5 September 2019 – consultation on draft legislation closed ─ August 2019 – guidance issued by HMRC ─ Winter 2019 – updated CEST tool ─ January post-election review ─ March 2020 – new legislation should receive Royal Assent (?) ─ 6 April 2020 – new legislation will become effective (?) 47
  • 48. Eversheds Sutherland | 23 January 2020 | Setting the scene Employm ent status Deemed employm ent status - tax Same or differe nt? 48 Off-payroll working
  • 49. Eversheds Sutherland | 23 January 2020 | Source: Off-payroll working rules from April 2020: Factsheet, HM Treasury 49
  • 50. Scope: what is in/out of scope?
  • 51. Eversheds Sutherland | 23 January 2020 | Scope Off-payroll working ─ When do the new IR35 rules not apply? For example: • A = genuinely self-employed ie their services are not provided via B • A is not deemed to be an employee of C • an agency/third party directly employs A • C has fully contracted out services – no personal service • the intermediary fails to satisfy one of three Chapter 10 ITEPA 2003 conditions (such as: A has no material interest in B) • NB: some particular sector arrangements apply (eg. construction) ─ The small employer exemption: • if small companies regime under the Companies Act 2006 applies • what if companies grow or reduce in size? • what of JVs, subsidiaries, unincorporated organisations ? 51
  • 53. Eversheds Sutherland | 23 January 2020 | Determining deemed employment status Client must: • Determine the employment status of the worker for tax purposes • Issue a status determination statement (SDS) • Explain reasons for the status determination in the SDS • Exercise reasonable care in so doing • Give the SDS to the worker, A, and the 3rd party C contracts Timing of the SDS? Each additional party must pass the SDS down the chain Using the CEST tool / HMRC guidance 53
  • 54.
  • 55. Operating a status disagreement process
  • 56. Eversheds Sutherland | 23 January 2020 | Operating a status disagreement process Client must: • Establish a “client-led status disagreement process” (SDP) • Apply the SDP if A, the worker, or the deemed employer, (ie the person that pays B) disagrees with the SDS • Reconsider the worker’s employment status in light of the worker/deemed employer’s representations and respond within 45 days of receiving the disagreement • If it determines that its original determination is correct, inform the person who raised the grievance giving reasons • If it determines that its original determination was wrong, issue a new SDS to the worker and deemed employer 56
  • 59. Eversheds Sutherland | 23 January 2020 | True or False? Setting the scene Off-payroll working As long as Client has issued an SDS it can never be liable for any unpaid tax? 59
  • 60. Eversheds Sutherland | 23 January 2020 | Transfer of liability – incentivising compliant supply chains Off-payroll working ─ Currently, the basic principle is that the party paying B, the PSC, is liable for deducting and paying employment taxes to HMRC (some exceptions, eg offshore fee payers) ─ From 6 April 2020, the client will become liable if it: • fails to provide compliant SDS (including exercising reasonable care in determining the status of the worker) to the worker and contracting party, or • fails to comply with SDP ─ From 6 April 2020, another party in supply chain will become liable if it: • fails to cascade SDS to next party in supply chain ─ Proposed that HMRC will have power to recover unpaid employment taxes from others in supply chain, such as first agency at top of chain or client, where party responsible for making such payments fails to do so ─ Awaiting publication of amended PAYE Regs/HMRC guidance
  • 61.
  • 63. Eversheds Sutherland | 23 January 2020 | What are the key risks? Client liable for making Status Determination Statements and operating Status Disagreement Process Fee Payer liable for paying employment taxes for workers with deemed employment tax status Anti-avoidance measures: Client could become Fee Payer and liable for employment taxes in certain circumstances 63
  • 65. Eversheds Sutherland | 23 January 2020 | True or False? Setting the scene Off-payroll working From 6 April 2020, it is unlawful to use a PSC? 65
  • 66. Eversheds Sutherland | 23 January 2020 | Client action planning Off-payroll working Act now – existing contracts will have notice periods which will affect lead times Audit current use of off-payroll workers & assess supply chain providers Check contractual terms; consider indemnities Review business case for continuing to use PSCs Budget for potentially increased costs Collate information which will form basis of SDS Train relevant employees in preparing SDS Implement SDP meeting HMRC standards and time line Beware unjustifiable blanket determinations Consider data protection implications Prepare procurement, invoicing, policies and payroll processes
  • 67. Eversheds Sutherland | 23 January 2020 | Our services Off-payroll working Template SDS and SDP A guide to CEST and its pitfalls Tax and data protection advice Review of workforce engagement Client IR35 Q&A, In-house and public training Commercial contract advice/drafting 67
  • 68. Eversheds Sutherland | 23 January 2020 | Your Questions? 68
  • 69. Jenny Mann, Principal Associate Eversheds Sutherland (International) LLP Chloe Themistocleous, Associate Eversheds Sutherland (International) LLP Case law update
  • 70. Eversheds Sutherland | 23 January 2020 | Does the employment tribunal have the power to remove judgments from the online register? Question
  • 71. Eversheds Sutherland | 23 January 2020 | NO Ameyaw v PWC (EAT) FACTS  Preliminary Hearing judgment was very critical of Ms A’s behaviour (disruptive to proceedings).  Ms A applied for the claim to be taken offline alleged it breached GDPR and her right to privacy or for an for anonymity order  The ET refused the applications and Ms A appealed to the EAT DECISION  General rule - employment tribunal has no power to withhold judgments from the public register other than in some very limited circumstances (such as national security)  No expectation of privacy in respect preliminary hearing – Article 8 ECHR not engaged. Answer 71
  • 72. Eversheds Sutherland | 23 January 2020 | Did covert surveillance of employees under suspicion of theft breach their Article 8 right to private life? Question
  • 73. Eversheds Sutherland | 23 January 2020 | NO Lopez Ribalda & others v Spain (ECHR) FACTS  Employer installed covert video surveillance in its supermarket where there was high levels of theft occurring.  The recordings were limited to two weeks and confined to a small group of individuals  Employees were not told about this. DECISION  Employees should have a limited expectation of privacy at work, especially on a supermarket floor.  The employer had taken steps to confine the period and circulation of recordings.  The intrusion was proportionate fair balance had been struck between employer need and Employee rights. Answer 73
  • 74. Eversheds Sutherland | 23 January 2020 | Are homophobic remarks about hypothetically not hiring LGBT people unlawful? Question
  • 75. Eversheds Sutherland | 23 January 2020 | YES Opinion of Advocate General Sharpston in NH v Associazione Avvocatura per i diritti LGBTI FACTS  A senior lawyer remarked on Italian radio that he would never recruit a homosexual to his law firm – no active recruitment was ongoing at the time.  An association for LGBT lawyers in Italy brought proceedings alleging discrimination and seeking remedies including a press retraction, action to eliminate discrimination and damages DECSION  The claim won at first instance, was upheld on appeal and an award of 10,000 Euros in damages. The Supreme Court made a reference to the CJEU and asked in the absence of a direct victim did an association have standing and could a hypothetical statement fall within the Equal Treatment Directive which pertains only to employment?  The Advocate General considered that since such statements might discourage people in a protected group from applying for jobs in law it did fall within the scope of the Directive. It is for national law to determine if an association has a legitimate interest. If they do, discriminatory conduct should be sanctioned in an effective, proportionate and dissuasive manner including damages.  This Opinion is not binding on the CJEU, but in most cases the CJEU will follow the Advocate General's Opinion Answer 75
  • 76. Eversheds Sutherland | 23 January 2020 | If a manager lies, in good faith, about the reason for dismissal, is that enough to shift the burden of proof in a discrimination case? Question
  • 77. Eversheds Sutherland | 23 January 2020 | YES Base Childrenswear v Otshudi (CA) FACTS  Ms O was made redundant and she believed this was because of her race  The employer stated the reason for redundancy as being “purely financial” but later amended its ET3 to include a suggestion that the employee was possibly stealing clothing  The adapted reason for redundancy was intended by the manager to “minimise potential confrontation” with the employee DECISION  Both the ET and EAT held that the manager’s persistence in lying about the real reason for the employee’s dismissal formed the basis of a prima facie case of race discrimination, shifting the burden of proof to the employer (on which they failed to show that race played no part in her dismissal).  Whilst the manager may have had a genuine belief that she was stealing, this was based on a stereotypical prejudice he held (consciously or otherwise) against black people. Answer 77
  • 78. Eversheds Sutherland | 23 January 2020 | Was a tribunal entitled to find that a Claimant was NOT subject to religious discrimination because he was dismissed for the manner in which he expressed his beliefs, rather than for the beliefs themselves? Question
  • 79. Eversheds Sutherland | 23 January 2020 | YES Page v NHS Trust Development Authority (EAT) FACTS  The Claimant was dismissed from his role as non exec Director following two televised interviews in which he expressed the view that, because of his Christian beliefs, adoption by a same-sex couple could not be in the best interests of the child and was not normal. DECISION  The dismissal was held to be not because of the Claimant’s faith but rather because: • (a) he had spoken to the media without informing the Trust; and • (b) did so in the knowledge that his conduct would likely have an adverse effect on the Trust’s ability to engaged with sections of the community it served • This was a finding of fact which could not be said to be perverse. Answer 79
  • 80. Eversheds Sutherland | 23 January 2020 | Any Questions?
  • 81. Mark Hammerton, Partner Eversheds Sutherland (International) LLP ICE Regulations
  • 82. Eversheds Sutherland | 23 January 2020 | Information and consultation 82
  • 83. Eversheds Sutherland | 23 January 2020 | Changes under the Good Work Plan (December 2018) ─ Voice and Autonomy ─ The Government believes that high levels of employee engagement improve organisational performance and productivity, and lead to more fulfilling work 83
  • 84. Eversheds Sutherland | 23 January 2020 | ICE Regulations ─ Threshold required for a request to set up information and consultation arrangements lowered from 10% to 2% of employees ─ This will be subject to the existing minimum of 15 employees ─ Regulations have been made, which will implement this change from 6 April 2020 ─ ICE Regulations 2004 ─ Apply to undertakings ─ Would need to be company wide ─ Default:- • inform on recent and probable developments … and measures affecting future employment and to be consulted “with a view to reaching agreement” 84
  • 85. Eversheds Sutherland | 23 January 2020 | ICE Regulations (Cont’d) ─ Representative right to time off and detriment right ─ Union increased interest? ─ Penalty is a £75,000 fine ─ CAC declaration – sequestration/directors liability 85
  • 86. Eversheds Sutherland | 23 January 2020 | ICE Regulations (Cont’d) ─ Options • monitor and deal “ad-hoc” • bolster informal arrangements • review structures • introduce pre-existing agreement(s) • commence negotiations • do not comply 86
  • 87. Eversheds Sutherland | 23 January 2020 | Corporate Governance Code 2018 ─ Fully listed companies ─ Employee engagement via:- • designated NED • employee advisory council • workforce director ─ Lukewarm response ─ Capita/FirstGroup ─ Holistic ER strategy required 87
  • 88. Eversheds Sutherland | 23 January 2020 | Your Questions? 88
  • 89. working for everyone to promote health and wellbeing at work Mental health in the workplace Good Practice and the Law James Boffey
  • 90. Section 4 Managing mental health related issues
  • 91. Recruitment 1Adult Psychiatric Morbidity Survey 2014 2 Psychiatric Services. 2007 Chloe is the best candidate, but at the end of the interview she told me she suffers from depression. Is she worth the risk?
  • 92. Performance management Chris is being very awkward about the new hot-desking arrangements. At his performance review I raised this with him – he now says its because of his OCD
  • 93. Disciplinary meetings I had a disciplinary meeting with Josh booked in for this morning, but he’s rung in sick. Says he has a doctor’s note for work- related stress. What action should you take?
  • 94. Promotion A promotion opportunity has come up. I need someone with lots of energy so have insisted the person has a “positive mental outlook”. What’s wrong with this description?
  • 95. Day to day management Ranjit experiences psychosis. The medication he takes makes him very tired and so he has asked if he can only work later shift times. What factors should you consider?
  • 96. Relationships and team dynamics Maud suffers from anxiety and depression. She’s been off for 4 months but is back tomorrow. Some of the team refer to her as ‘Moody Maud’. How could you help her to successfully return to work?
  • 97. Absence and return to work Barbara has Bipolar Disorder. She’s been off for six months and her sickness cover has elapsed. I’ve done everything I can to help her. Key points to consider in this situation?
  • 99. Acas Framework for positive mental health at work
  • 100. Acas Framework for positive mental health at work
  • 101. Acas Framework for positive mental health at work
  • 102. Contact me directly • jboffey@acas.org.uk • Tel: 0330 109 3338 Mob: 07701 372 880 • Twitter: @james_boffey • LinkedIn.com/in/jboffey
  • 103. eversheds-sutherland.com This information pack is intended as a guide only. Whilst the information it contains is believed to be correct, it is not a substitute for appropriate legal advice. Eversheds Sutherland (International) LLP can take no responsibility for actions taken based on the information contained in this pack. © Eversheds Sutherland 2017. All rights reserved. CAR_LIB1-#13057506CAR_LIB1-#13057506CAR_LIB1-#13057506MAN_002-#7143200 Eversheds House 70 Great Bridgewater Street Manchester M1 5ES MAN_002-#7143200MAN_002-#7143200MAN_002-#7143200MAN_002-#7147762MAN_002-#7147762MAN_002-#7147762MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7168843MAN_002-#7694959MAN_002-#7694959MAN_002-#7694959MAN_002-#7694959MAN_002-#7694959MAN_002-#7694959MAN_002-#7694959MAN_002-#7948624MAN_002-#7948624MAN_002-#9341977MAN_002-#9341977
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