Employment law update 2016, Exeter
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This document provides an annual employment law update covering topics such as TUPE, collective redundancies, working time regulations, contracts of employment, privacy in the workplace, social media, whistleblowing, discrimination, the Modern Slavery Act 2015, apprenticeships, and tribunal fee updates. Key cases from 2015 are summarized relating to these various employment law topics. Employers are advised to review policies and employment practices in light of the legal developments discussed.
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Employment law update 2016, Exeter
- 1. Annual employment law update January 2016, Exeter
- 2. Topics 1. TUPE Update 2. Collective redundancies 3. Working Time Regulations 1998 4. Contracts of employment 5. Privacy in the workplace 6. Social media update 7. Whistleblowing 8. Discrimination 9. Modern Slavery Act 2015 10. Apprenticeships 11. Tribunal fees update 12. Key updates for 2016
- 4. Brief TUPE Recap European legislation Intended to protected employment of employees where businesses change hands Two main scenarios: a) Transfer of an undertaking b) Where an outsourced contract is transferred on, or brought back in house
- 5. What is a service provision change? 3 conditions must be met: • Organised grouping of resources which must have, as its principal purpose, the provision of services to a particular client. • Not a single specific or task of a short term duration • Not wholly or mainly the supply of goods
- 6. 2014 Regs: service provision change Transfers on or after 31 January 2014: • Activities: “fundamentally or essentially the same” • Change reflects existing case law on the meaning of ‘activities’
- 7. TUPE – Key 2015 Cases When attempting to establish whether a service provision change arises: • Identify the services provided • List the activities performed • Identify the employees carrying out those activates • Consider whether these employees form an organised grouping An organised grouping can be a single individual Rynda (UK) Ltd v Rhijnsburger
- 8. TUPE – Key 2015 Cases When looking at cessations of work prior to a TUPE transfer, the purpose, nature and length of the cessation is key to determining whether the employees are still part of the organised grouping Inex Home Improvements Ltd v Hodgkins & Others
- 9. TUPE – Key 2015 Cases Is the employee assigned to the organised grouping? • No – not assigned • Connection to business was administrative Distinguished between: long-term sick/maternity leave/ lay-off • Question of fact- the reason, nature and length of the cessation is relevant, as is the likelihood that the employee will return to work in the future. BT Managed Services Ltd v Edwards
- 10. TUPE – Key 2015 Cases Other cases of interest • Ottimo Property Services Ltd v Duncan - a service provision change can, in principle, involve a group of clients • Jakowlew v Nestor Primecare Services Ltd (t/a Saga Care) – instruction to a service provider to remove a particular employee did not, in itself, mean that employee is no longer assigned • ICTS UK Ltd v Mahdi and ors - Subsequent events may be relevant to whether a task was intended to be of "short-term duration"
- 11. TUPE – Summary When attempting to establish whether an SPC arises: – Identify the services provided – List the activities performed - are they “fundamentally or essentially the same” – Identify the employees carrying out those activates – Consider whether these employees form an organised grouping
- 12. TUPE – Summary Is the employee assigned? • An organised grouping can be a single individual • Conversely, there can be more than one client in an SPC but the transferor should not be one of them Where appropriate ensure agreements have clauses dealing with removal of employees, setting out the procedure and authority for such removal • Consider contractual indemnities
- 14. S.188 Trade Union and Labour Relations (Consolidation) Act 1992 Collective redundancies will arise (and the information and consultation requirements will be triggered) where an employer is: “proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days” Ongoing issue over what is meant by “establishment”
- 15. USDAW v WW Realisation 1 Ltd • Thousands of people lost their jobs when Woolworths and Ethel Austin went into administration. • Should the consultation provision apply to employees at stores of less than 20 people? • ET said no – staff at establishments of less than 20 received no award
- 16. Decision appealed to EAT EAT held: • UK failed to implement original Directive by including words “at one establishment” in TULRCA • Those words should be deleted • Outcome - those working in shops with fewer than 20 employees should have been collectively consulted with and would get protective award
- 17. Further appeal to Court of Appeal Court of Appeal referred a question to European Court of Justice (ECJ): Does the phrase ‘at least 20’ in the Directive refer to the number of dismissals a) across all or some of an employer’s establishments in which dismissals are effected within the 90 day period, or b) in each individual establishment?
- 18. ECJ answer • “Establishment” means the unit to which the workers made redundant are assigned • Case referred back to Court of Appeal for judgment but not likely to be favorable for employees • Watch this space…
- 19. 3. Working Time Regulations 1998 (WTR)
- 20. WTR - Overview • Derived from European legislation • Key rationale behind the Directive is protection of workers’ health through ensuring adequate rest periods are taken • Case law further developed in 2015
- 21. WTR - Topics a) Holiday pay calculations – what is included? b) Relationship between sickness absence and annual leave entitlement c) What activities can be considered working time?
- 22. WTR Provisions – Holiday • Workers are entitled to statutory 4 weeks basic annual leave • The UK provides an additional 1.6 weeks statutory annual leave • A worker is entitled to be paid at the rate of a “week’s pay” in respect of each week of annual leave • ERA 1996 set out methods for calculating a week’s pay according to terms of remuneration package
- 23. a) Holiday Pay: Commission • Commission payments should be taken into account for calculation of holiday pay • Calculation method is to take an average of the worker’s total remuneration over a 12-week period, including any commission or similar payment which varies in amount Lock v British Gas Trading Ltd
- 24. Holiday Pay: Overtime • Key question – should purely voluntary overtime be included in calculation of holiday pay? • Answer – yes, but will depend on facts • Is there an “intrinsic link”? NB. 1 July 2015 - Deduction from Wages (Limitation) Regulations 2014 – 2 year backstop on wages claims Patterson v Castlereagh Borough Council
- 25. b) Holiday entitlement and sick leave • Sick leave is intended to enable an individual to recover from illness • Annual leave is intended to enable a worker to enjoy periods of rest and relaxation for reasons of health and safety • It is inconsistent to compel a worker absent on sick leave to take annual leave at the same time • 18 month limit on carry over of unused annual leave Plumb v Duncan Print Group Ltd
- 26. c) WTR – Travel and Working Time “Working time” is defined as: – any period during which a worker is working, at his employer's disposal and carrying out his activity or duties; – any period during which he is receiving relevant training; – any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement. “Rest period” – any period that is not working time
- 27. Working Time • Where there is no fixed office base or location, working time starts when they leave home and not when they attend their first job • This is relevant to calculation of working hours, rest periods and possibly holiday entitlement (if accrued according to hours worked) • Pay not affected as not governed by WTR but check employment contracts for enhanced terms Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security
- 28. Working Time • Time spent attending union/health and safety meetings can be working time • Employers may wish to err on the side of caution and treat all union and health and safety meetings as part of working day Edwards and another v Encirc Ltd
- 29. WTR – Next steps • Particularly of relevance to organisations with mobile workers; sales, healthcare • Review your holiday pay calculations and policies on holiday pay • Bear in mind your contract terms may also need review in light of these cases
- 30. 4. Contracts of employment
- 31. Contracts of Employment - Topics a) Changing terms and conditions of employment b) Right to be accompanied at disciplinary hearings c) Small Business, Enterprise and Employment Act 2015 d) Changes to parental leave
- 32. a) Unilateral change clauses Contract clause included to give the employer the right to make unilateral changes to contractual terms Acceptable to use if: • Clear • Unambiguous • Sufficiently broad to cover requirements Sparks & others v Department for Transport
- 33. b) Right to be Accompanied Revised Acas code • Absolute right to choose either colleague or trade union representative/official • A worker can change their companion • An employer should to be given enough time to make arrangements to allow a chosen companion to attend • The employee should provide the name of the representative and specify whether a colleague or union rep/official
- 34. Right to be Accompanied • The case looked at the right to be represented by someone other than colleague or union representative • Employers should consider the effect of a refusal to allow outside support – Why was the request made? • Refusal could be sufficiently severe to constitute a constructive dismissal Stevens v University of Birmingham
- 35. c) Small Business, Enterprise and Employment Act 2015 (SBEEA) • Contains various employment provisions • Two areas of note: Penalty for underpayment of National Minimum Wage Zero Hours Contracts
- 36. Penalty for underpayment of National Minimum Wage (NMW) • Amends National Minimum Wage Act 1998 – penalty for non-payment of NMW now maximum of £20,000 per worker • Previously was £20,000 per notice • Government already naming and shaming offending employers
- 37. Zero hours contracts • Exclusivity clauses in zero hours contract unenforceable • Can no longer include clauses that seek to restrict a worker’s ability to work under another contract or require authorisation from the employer to do so • Employees protected from unfair dismissal • Workers and employees protected from detriment • Came into force 11 January 2016
- 38. d) Changes to parental leave • Statutory pay increase: £138.18 to £139.58 per week • From 5 April 2015: – Parental leave now available up to child’s 18th birthday – Antenatal appointments – fathers and partners can take unpaid leave for up to two appointments – Adoption leave and pay – primary adopters can take paid time off for up to 5 adoption appointments and secondary adopters for up to 2 appointments – Surrogacy – primary adopter can take adoption leave
- 39. Shared Parental Leave • Allows mother to share or split maternity leave • To be extended to working grandparents by 2018 • Policy rationale – intended to redress the balance of childcare responsibilities between men and women • Same rationale - Compulsory gender pay gap reporting to be introduced – 26th March 2016
- 40. New Shared Parental Leave Continuity of employment Grant or refuse SPL Entitled to statutory SPL (52 weeks) – (maternity leave taken) 26 weeks service Economically active Parental responsibility Main responsibility with named partner
- 41. 5. Privacy in the Workplace
- 42. Privacy in the Workplace • Increasing complexity of technology • Greater use of iPads, laptops, smartphones • What issues arise now that employees can record images/conversations in the workplace so easily?
- 43. Covert Recording: By Employee Covert recordings by the employee: • Usually only admissible in evidence if the recording relates to time when the employee was present Chairman & Governors of Amwell View School v Doherty “No ground rule could be more essential to ensuring a full and frank exchange of views…than the understanding that their deliberations would be conducted in private and remain private”
- 44. Covert recording: confidentiality The employee recorded panel discussions when employee was not present • Balance of public policy issues of confidentiality with the interests of justice • Could be distinguished from Dogherty • Interests of justice supported its admissibility – nature of comments Punjab National Bank (International) Ltd v Gosain
- 45. Enforced Subject Access Requests (SAR) • Now a criminal office for employers to force applicants and employees to obtain and disclose a copy of their criminal record through a subject access request under the Data Protection Act 1998 • Already a scheme of criminal records checks (DBS) in place where required by law
- 46. 6. Social Media Update
- 47. Social Media Dismissal “on standby tonight so only going to get half p*****, lol” British Waterways Board v Smith
- 48. Social Media Dismissals • Failure to take timely action once aware of misconduct; and • Searching for evidence against an employee… …does not necessarily make a dismissal unfair! British Waterways Board v Smith
- 49. Why was the dismissal fair? • The derogatory remarks about the employer; combined with • The reasonable perception of a H&S risk Resulted in a reasonable conclusion that trust and confidence had been broken British Waterways Board v Smith
- 50. Misuse of email dismissal • Employer actively sought evidence of gross misconduct as way of avoiding paying notice pay • Employee sent pornographic email from a work account • Dismissal held to be fair Williams v Leeds United Football Club
- 51. What made the dismissal fair? Court looked at all the circumstances of the case including: • Position held by the employee • Nature of the contract and the employer’s business • Consequences of the breach Williams v Leeds United Football Club
- 52. Summary • Cases highlight the view the tribunals are taking with dismissals • Treat with caution • Prudent employers should: – maintain effective policies on use of social media and electronic communications; and – ensure that those policies are properly implemented and that staff are aware of them
- 54. Protected Disclosure • Employees have rights not to be dismissed or subjected to a detriment for making a protected disclosure • After a number of disasters eg Zeebrugge it was recognised that employees should be protected to encourage them to raise concerns – health & safety, criminal offices, etc.
- 55. Protected Disclosures • Concerned an employee’s disclosure to Information Commissioner’s Office (ICO) in breach of employee’s instruction • Although employee had made a qualifying disclosure it was not a protected disclosure • Management instruction not to contact ICO was reasonable as specific to the particular investigation • This case does not mean management can stop employees contacting prescribed persons Barton v London Borough of Greenwich
- 56. Protected Disclosures & Self Interest • Two cases involving individual contractual disputes can be held as being within the public interest and protected disclosures • There will need to be some form of public interest element but “public” can be a small section of society • Cases suggest a low hurdle of what may be a protected disclosure made in matters of self interest • Chesterton is being appealed to the Court of Appeal but is not due to be heard until November 2016 Chesterton Global Ltd v Nurmohamed Underwood v Wincanton Plc
- 58. Is a trend developing? • 2008 – claims of direct discrimination or victimisation on grounds of disability can be brought by someone who is not disabled but had been discriminated against because of some else’s disability (Coleman v Aldridge Law) • In 2015 a number of cases seem to show an extension of this trend. Victimisation by association (Thomson v London Central Bus Company Ltd) • Direct and indirect discrimination may be possible (Chez Razpredelenie Bulgaria AB (CRB) v Komisia za Zashtita ot Diskriminatsia)
- 59. Discrimination by Association • Employers do not have a duty to make reasonable adjustments in respect of working arrangements of a non-disabled employee in order that they can better provide for the needs of a disabled dependent • Duty limited to assisting disabled employees • But bear in mind – flexible working requests and sex discrimination Hainsworth v Ministry of Defence
- 60. Is type 2 diabetes a disability? Metroline Travel Ltd v Stoute • Tribunal held yes, but EAT held no • Employee followed diabetic diet avoiding sugary foods • Held: abstaining from sugary drinks was not a “diet” and therefore could not constitute a “treatment”
- 61. Other areas to note…
- 62. Other areas to note… • Modern Slavery Act 2015 • Apprenticeships • Tribunal fees update
- 63. 9. Modern Slavery Act 2015 Relevant to businesses who: • supply goods or services, and • have a total annual turnover of more than £36 million As of 29 October 2015: • prepare a slavery & human trafficking statement for each financial year with steps taken to eliminate slavery and trafficking from supply chains
- 64. 10. Apprenticeships • New scheme of “approved English apprenticeships” • Such schemes will still be classes as contracts of service • Introduced 26 May 2015
- 65. 11. Tribunal fees statistics (Total claims) 191,541 105,803 61,306 0 50,000 100,000 150,000 200,000 250,000 2012/13 2013/14 2014/15
- 66. Tribunal fees update • Introduced to encourage settlement outside of tribunal system and reduce operational costs of the system • Unpopular with unions and employee groups • Court of Appeal dismissed UNISON’s challenge to fees • UNISON have applied for permission to appeal • In June, Government began review of fees • Scottish Government intends to abolish fees
- 67. 13. Key Updates for 2016
- 68. Trade Union Bill 2015/2016 • Ballot thresholds • Ballot results • Notice of industrial action • Expiry date of industrial action • Supervision of picketing • Facility time
- 69. Apprenticeship levy • Expected to come into force in April 2017 • All employers will pay 0.5% of their paybill However… • All employers will receive £15,000 annual allowance against the levy • In effect only employers whose paybill exceeds £3m per year will contribute (fewer than 2% of employers)
- 70. NLW and NICs 6 April 2016 • National Living Wage • £7.20 per hour- working people 25 and over • Greater impact on the regions versus the South East National Insurance Contributions • Employer NICs abolished for apprentices under the age of 25
- 71. • Government due to publish regulations by 25 March 2016 • All employers with more than 250 employees will be required to publish information about their gender pay gap • Government intends to include bonus information • Government has pledged to work with business to eliminate all-male boards in top 350 companies Gender Pay Gap Regulations
- 72. Immigration Bill 2015-16 • Contains proposals to curb illegal working and protect the exploitation of migrant workers by: • Extending the existing criminal offence of knowingly employing an illegal migrant from two years to 5 years; • Creating a new offence of illegal working which will enable the earnings of illegal workers to be seized; • Giving the secretary of state the power to introduce an ‘immigration skills charge’ on certain employers who sponsor skilled workers from outside the EEA; and • Requiring public authorities to ensure that public sector workers in customer-facing roles speak fluent English.
- 73. Speak to us… Daniella Glynn| 01392 458767 Daniella.glynn@brownejacobson.com Rachel Billen| 01392 458737 Rachel.billen@brownejacobson.com
Editor's Notes
- There have been some important TUPE cases in 2015. This section is light touch – its either relevant to you or not… if it is something which is of particular interest to you – speak after the session/add to feedback forms. What do you need to know? Relevant if you are buying or selling a business, are thinking about outsourcing aspects of your organisation, if you have outsourced contracts which you want to re-tender, or bring back in house. Fact specific if TUPE applies – warning! Speak to us for a more detailed assessment.
- Transfer of Undertakings (Protection of Employment) Regulations 2006 The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 Acquired Rights Directives (77/187 and 2001/23) Start off with a quick recap on TUPE before looking at some of the important cases of last year. Transfer of Undertakings (Protection of Employment) Regulations 2006 been with us for 10 years (replaced the 1981 Regulations). TUPE implements the Acquired Rights Directive (77/187 and 2001/23). English courts and employment tribunals are required to give TUPE a purposive construction to give effect to the general purpose of the underlying Directive, which is to safeguard employees' rights on the transfer of a business. TUPE introduced three concepts into UK employment law: The automatic transfer principle: employees transfer to the transferee who inherits all rights, liabilities and obligations in relation to them. Protection against dismissal in connection with a TUPE transfer. The obligation to inform and consult with representatives of the affected employees. Various changes to TUPE were made throughout 2014, the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014. The TUPE regs apply to two types of transfer: Business Transfer - A transfer of a business, undertaking or part of a business or undertaking where there is a transfer of an economic entity that retains its identity. This involves three elements: an economic entity; a transfer of that economic entity; and the economic entity retaining its identity following the transfer. Example – selling the assets of a business (not shares) – paint factory (all stock, machines, current contracts) Service provision change - Broadly speaking, this covers outsourcing, insourcing and retendering exercises. Its in the area of service provision changes where we continue to see out courts and tribunals working hard interpreting the question which I get commonly asked – does TUPE apply? Question is important for clients - we are losing work from a contract – from a cost perspective – may be helpful if staff transfer to new contractor (avoid redundancies) or we may not want staff to transfer as they are skilled. If won the work on a retender (or if looking to bring work back in house) we could be faced with increased staff costs if we have to take e/ees or make redundancies.
- When looking at whether TUPE applies under the service provision change provisions - 3 conditions need to met: Organised grouping of resources which must have, as its principal purpose, the provision of services to a particular client Not a single specific or task of a short term duration Not wholly or mainly the supply of goods The definitions of SPC under Reg 3(1)(b) all involve activities being carried out by or on behalf of a ‘client’. Regs also set out exclusions when the Service Provision Change provisions do not apply: Not a single specific or task of a short term duration Not wholly or mainly the supply of goods Example – paint factory I don’t want to deal with the cleaning of the factory so outsource that to a professional cleaning firm (first generation outsourcing) At the end of the contract – I don’t like that firm so ask another frrm to take over the contract (second generation outsourcing) Don’t like that cleaning firm either – so decide I’m better dealing direct with cleaning of the factory (bringing it back in house)
- For changes after on or after 31 January 2014 (under the 2014 Regs): Activities: “fundamentally or essentially the same” Change reflects existing case law on the meaning of ‘activities’ In my Paint Factory example – services (cleaning) need to be the same cleaning (not e.g. maintenance of the machinery)
- Rynda (UK) Ltd v Rhijnsburger Key points When facing a potential SPC, CA established 4 stage test for determining whether there has been an SPC when company A takes over the provision of services to a client from company B. identify the service which B provided to the client; Lists the activities which B’s staff performed in order to provide that service; identify the employee(s) of B who ordinarily carried out those activities; consider whether B organised the employee(s) into a ‘grouping’ for the principal purpose of carrying out the listed activities. Case also decided it is possible to have an organised grouping of 1 person.
- Inex Home Improvements Ltd v Hodgkins & others Inex - painting and decorating services Nov & Dec 2013 – staff temporarily laid off January 2014 – contract was awarded to Localrun Decorating Ltd ET: not an “organised group” because laid-off EAT disagreed Despite temporary cessation of work still organised group Purpose, nature and length of cessation is important EAT held that laying-off employees before a transfer meant that they were still 'assigned' to an 'organised grouping of employees', which allowed them to transfer under TUPE in a service provision change. The Claimants worked on a building project in Sandwell, which was split into various tranches, they were laid off as per a national agreement when a tranche was completed. Their employer Inex did not get a further tranche of work, which went to another contractor in circumstances that the employment tribunal found would have been a service provision change, but since the Claimants were laid-off, they weren't an 'organised grouping' and so didn't transfer. The EAT rejected this approach, taking a purposive approach to TUPE over a service provision change, for the 'protection of employment' despite those regulations deriving from UK law not EU law, and noted that: "Common sense suggests that a temporary cessation of employment including for the purpose of holidays, sickness, or expressed to be a temporary lay off should not of themselves deprive employees of their employment if there is a service provision change during the period of temporary cessation."; but noting "In our opinion a temporary cessation of work in the case of a service provision change immediately prior to the transfer does not necessarily prevent a TUPE transfer taking place. The purpose, nature and length of the cessation are of course relevant in determining whether or not the organised grouping continued in existence.".
- BT Managed Services Ltd v Edwards Facts: EAT case – September 2015 Mr Edwards worked for Orange in its domestic network outsource (DNO) division Jan 2006 – went off sick and remained off work for over 5 years for a heart condition Under his employment contract, Mr Edwards was entitled to permanent health insurance (PHI) and was by 2009 receiving regular payments under PHI scheme 2009 Oranges’s DNO division outsourced to BT and Mr Edwards transferred In 2010, it seems that two managers in the DNO division at BT made a conscious decision to keep Mr Edwards permanently absent so that he could continue to receive PHI payments. 2012 – further retender and DNO division transferred from BT to Ericsson BT maintained that Mr Edwards' employment transferred to Ericsson on the basis that he remained part of the DNO division, despite his absence. However, Ericsson refused to accept Mr Edwards on the grounds that his long-term absence prevented him from being "assigned" to the division at the time of the service provision change (SPC). ET - found that Mr Edwards was not assigned to the DNO division immediately before the SPC. EAT dismissed the appeal - Mr Edwards was not assigned EAT distinguished this case from scenarios where employees are on maternity leave or long-term sick leave. In this case, Mr Edwards was "permanently" unable to return to work and could have no further involvement in the economic activity performed by the grouping (the DNO division) and the performance of which is its purpose. Mr Edwards' connection with the grouping boiled down to a limited administrative connection, which was not based on any present or future participation in economic activity. Distinguished between: long-term sick/maternity leave/ lay-off Case is being appealed - Scheduled to be heard in the Court of Appeal on 14 June 2016.
- Ottimo Property Services Ltd v Duncan and anor Facts Mr Duncan was employed by Chainbow Limited (Chainbow) as a Site Maintenance Manager based at Britannia Village (BV), an estate made up of a number of blocks of residential housing. Each block had its own residents' management company, which was a separate legal entity, and there was also a general management company for the common parts of the estate. 12 out of the 13 management companies entered into property management services contracts with Chainbow. Over a period of years, Chainbow lost six of these contracts and, in February 2012, it sub-contracted the remaining six contracts to Ottimo Property Services (Ottimo). Mr Duncan was treated as having transferred from Chainbow to Ottimo under TUPE. Between May and August 2012, these six contracts were assigned to Warwick Estate Properties Limited (Warwick). Warwick did not consider that TUPE applied to the transfer and employed its own on-site Property Manager at BV. Mr Duncan was subsequently dismissed by Ottimo in July 2012. Mr Duncan brought tribunal proceedings claiming that his employment had transferred to Warwick. ET - found that there was no service provision change under TUPE (second generation outsourcing). This was on the basis that, construed literally regulation 3(1)(b) requires a single client. Although there may have been a service provision change in relation to each individual management contract, the tribunal considered that it was not permissible for a number of contracts with different clients to be aggregated to make one overall service provision change. Mr Duncan appealed EAT - upheld the appeal and remitted the case to the same tribunal to reconsider whether there was a service provision change. It held that a service provision change can, in principle, involve a group of clients, provided that they remain the same after the transfer and they share a common intention. Jakowlew v Nestor Primecare Services Ltd (t/a Saga Care) FACTS J was employed as a care worker by SC, working for a local authority. On 19 June 2013 the Council wrote to SC instructing it to remove J from work on its contract. Although this instruction was lawful under the contractual arrangements, it was not carried out: instead Saga Care issued J with a written warning on 27 June. Meanwhile, SC’s contract with the Council expired and the relevant services transferred to WH Ltd on 1 July. ET: having found that there had been a transfer by way of an SPC, went on to find that J had not been assigned to the relevant grouping. EAT: overturned decision.. The EAT could not accept that, whenever a third party instructs an employer to remove an employee from working upon particular activities, the employee immediately ceases to be assigned to the organised grouping of employees. The employer might ignore such an instruction, or might protest and argue the employee’s case. In either situation, the employee would remain assigned to the relevant grouping. Regulation 4(3) specifies that the only employees to transfer are those who were ‘employed immediately before the transfer’ or who would have been so employed had they not been automatically unfairly dismissed. Key points EAT also gave view that suspension is not enough to remove an employee from organised grouping. One possible route to ensure a remedy on termination of an outsourcing agreement, for non-compliance with an instruction to remove an employee, would be to negotiate a provision in the outsourcing agreement obliging the service provider to agree with the client a list of transferring employees (and to indemnify the client against any costs associated with those not on the list). However, it is not standard practice for outsourcing agreements to include such a list, particularly, as in this case, where it is a second or subsequent generation outsourcing. Where no list is agreed, it would be worth considering a specific indemnity in respect of any employees whose removal the client has instructed. --------------------------------------- ICTS UK Ltd v Mahdi and ors In order for there to be a service provision change, the client must intend that the relevant activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration FACTS ICTS had a contract to provide security services to Middlesex University at one of its former campuses. Middlesex sold the site but ICTS continued as service provider. The new owner then put the security service out to tender. Mr Mahdi lost his job when the contract was taken over by a new contractor, First Call. First Call disputed there was a TUPE transfer on a number of grounds, one of which was that, whereas ICTS had a contract to secure an operating site, First Call had a contract simply to look after the site pending its redevelopment by the new owner. The new contract was, therefore, First Call said, a contract for a single specific task of short term duration and so excluded from being a service provision change by virtue of TUPE, Reg 3(3) (a) (ii). The exclusion only applies, however, where it is the client’s intention that the activities concerned are to be carried out in connection with a task of short term duration. ET – the Employment Judge accepted First Call’s argument that when the contract had been granted it was the intention that the contract was to be for a limited period, to look after the site pending construction. But by the time of the hearing no planning permission had been obtained and no building work had commenced. On appeal EAT said this may have been relevant, and should have been taken into account by the Employment Judge. The Employment Judge therefore erred in law in not doing so, and the case was remitted for a re-hearing by the employment tribunal. Subsequent events, can be relevant in deciding a client’s intention for the purposes of determining issue.
- Relevant to any employers looking to re-organise or re-structure across a number of sites EU Collective Redundancies Directive (No.98/59) Directive is implemented into UK law by Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) Ongoing issue over what is meant by “establishment” Relevant when planning restructures Where an employer fails to comply with its collective consultation obligations, a complaint may be made to an employment tribunal, which can make a protective award of up to 90 days’ pay for each affected employee
- Where an employer fails to comply with its collective consultation obligations, a complaint may be made to an employment tribunal, which can make a protective award of up to 90 days’ pay for each affected employee ET held no need to consult at establishments of less than 20 people – 4500 people did not receive protective award
- In 2013, a controversial decision of the EAT which deleted the words “at one establishment” dramatically extended the scope of the collective consultation regime. The decision effectively required collective consultation whenever an employer proposed 20 or more redundancies across the whole organisation within a period of 90 days, even if the numbers of proposed redundancies at any given site were considerably lower.
- The ECJ delivered its decision on 30 April 2015 “Establishment” means the unit to which the workers made redundant are assigned The case will now return to the Court of Appeal to determine whether, on the facts, each branch of Woolworths and Ethel Austin was a separate establishment for the purposes of TULRCA. However, given the ECJ's decision, it seems likely that the Court of Appeal will overturn the EAT's judgment and confirm that each store was an establishment. The decision will come as something of a relief to employers, as had the Directive required the aggregation of dismissals across all workplaces belonging to a single employer, far more employers would have been obliged to consult over collective redundancies. Subject to the Court of Appeal’s decision, in the vast majority of cases, “establishment” is likely to be a single store or site. However, there may still be some occasions (as there were before the 2013 EAT decision) where separate geographical sites could be aggregated to form a single establishment – for example, building operations carried out at multiple sites but with a common headquarters and administrative base may constitute one single establishment. Employers should carefully consider what their proposals are, and the potential implications of those proposals, to determine whether the collective consultation obligations are triggered.
- Implements European Working Time Directive (No.2003/88) Policy Rationale A raft of cases looking at how sick leave and holiday entitlement interact The underlying theme is that someone cannot take holiday during a period of sickness – incompatible - Reg. 13 – workers are entitled to 4 weeks basic annual leave - In the UK, Reg.13A – provides additional 1.6 weeks leave over and above 4 week period - Reg. 16(1) - a worker is entitled to be paid at the rate of a “week’s pay” in respect of each week of annual leave to which he or she is entitled under Reg. 13 or Reg. 13A - Ss. 221-224 ERA 1996 set out methods for calculating a week’s pay according to terms of remuneration package
- The meaning of the Working Time Regulations continues to evolve, with holiday pay being the main area of attention, alongside the question of what counts as ‘working time’. We are going to look at the recent cases on the issues Holiday pay calculations (commission and overtime) Relationship between sickness absence and annual leave entitlement Is travel working time for peripatetic workers?
- - Reg. 13 – workers are entitled to 4 weeks basic annual leave - In the UK, Reg.13A – provides additional 1.6 weeks leave over and above 4 week period - Reg. 16(1) - a worker is entitled to be paid at the rate of a “week’s pay” in respect of each week of annual leave to which he or she is entitled under Reg. 13 or Reg. 13A - Ss. 221-224 ERA 1996 set out methods for calculating a week’s pay according to terms of remuneration package
- Lock and ors v British Gas Trading Ltd and anor EAT heard the appeal December 2015 - judgment is currently awaited. The appeal concerned whether Bear Scotland Limited –v- Fulton and another (EAT) should have any bearing on this case given that Bear Scotland concerned non-guaranteed overtime and Lock relates to commission. British Gas is also arguing that Bear Scotland was incorrectly decided when it concluded that domestic legislation could be interpreted purposively to give effect to EU Law Some holiday pay cases remain stayed pending the outcome of Lock (particularly claims against private sector employers and/or in respect of commission payments). Others are proceeding. A further tribunal decision is expected in the Lock litigation - this will deal with the correct reference period and the level of holiday pay to which Mr Lock was entitled. Key points When calculating the rate of holiday pay due under Reg 13 WTR (4 weeks holiday entitlement) commission payments should be taken into account. Hence the calculation method is to take an average of the worker’s total remuneration over a 12-week period, including any commission or similar payment which varies in amount – S.221(3) and (4). The 1.6 weeks holiday (Reg 13A) is not affected by this ruling. No guidance has been provided on the correct reference period to use for such a calculation. Facts An energy trader brought proceedings for unlawful deduction of wages on the basis that following a period of holiday (as he was only paid his basic pay during such a period) his remuneration dropped by as much as 60% as he did not receive commission payments for the period he was on holiday. The case was referred to ECJ which found commission payments should be taken into account. Summary: In order to be compatible with EU law, the Working Time Regulations 1998 had to be interpreted so as to require employers to take performance-related commission payments into account when calculating holiday pay. The Regulations were amended by adding a new sub-paragraph (e) to reg.16(3) providing that where remuneration included commission or similar payments, employers had to calculate "a week's pay" within the meaning of the Employment Rights Act 1996 s.221(2) on the basis that remuneration varied with the amount of work done.
- The holiday pay case that received the most publicity was the Northern Ireland Court of Appeal decision in Patterson –v- Castlereagh Borough Council Facts P (the lead claimant in a multiple claim) worked as an assistant plant engineer for the Council. He brought a claim for unlawful deductions from his wages in the Industrial Tribunal in Northern Ireland, arguing that the Council should have included the pay he received in respect of voluntary overtime when it calculated his holiday pay. When the tribunal rejected this claim, P appealed to the NICA. In that case, the NI Court of Appeal categorically stated that voluntary overtime could be included within holiday pay calculations provided that it has the required degree of regularity and permanence. Patterson is not binding on Tribunals in England, Wales and Scotland but may be persuasive. It is certainly consistent with the direction of travel that is being taken to date in respect of holiday pay claims by the Tribunals. Deduction from Wages (Limitation) Regulations 2014 The introduction of the Deduction from Wages (Limitation) Regulations 2014 last year, imposing a two-year backstop on the majority of unlawful deductions from wages claims (including holiday claims) from 1 July 2015 did not create the influx of holiday claims that some predicted. Many employers alike are still sitting tight awaiting hopeful clarification on this uncertain area of law from the EAT in Lock. Others are taking steps now to address holiday pay going forwards to assist with morale/employee engagement and to break any series of deductions.
- Background The Working Time Directive (2003/88/EC) (the Directive) provides that member states must ensure that every worker is entitled to paid annual leave of at least four weeks (Article 7(1)). This is implemented in Great Britain by regulations 13 to 16 of the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998). Regulation 13(9) of the WTR 1998 states that holiday to which a worker is entitled must be taken in the leave year in respect of which it is due, and may not be replaced by a payment in lieu except on termination of employment (which is provided for by regulation 14). In other words, subject to any agreement to the contrary, holiday cannot be carried over into the next leave year under the WTR 1998. NHS Leeds v Larner [2012] IRLR 825 the Court of Appeal held that, in order to interpret the WTR 1998 in line with the Directive, regulation 13(9) should be read as including the words in bold below: "Leave to which a worker is entitled under this regulation may be taken in instalments, but - (a) it may only be taken in the leave year in respect of which it is due, save where the worker was unable or unwilling to take it because he was on sick leave and as a consequence did not exercise his right to annual leave". Plumb - Facts P was employed as a printer for DPG Ltd. Having suffered an accident at work, he remained on sick leave between 26 April 2010 and 10 February 2014, when his employment terminated. DPG Ltd’s leave year ran from 1 February to 31 January. P did not take or request any holiday until 2013, when he requested permission to take all of his accrued holiday from 2010. DPG Ltd agreed to pay his salary in respect of accrued holiday for the current leave year (2013/14), but not for the previous three leave years. Following the termination of his employment, P brought a claim for payment in lieu of untaken leave for the 2010/11, 2011/12 and 2012/13 leave years. Comment The decision clarifies the wording added to regulation 13(9) of the WTR 1998 by the Court of Appeal in Larner and, therefore, the circumstances in which sick workers may be entitled to carry over accrued and untaken statutory holiday. Sick workers do not need to provide evidence that they were physically unable to take holiday. If they do not take or request holiday during sick leave, it is to be assumed that they are unable or unwilling to take it and, accordingly, that leave may be carried over to a subsequent holiday year. It was already clear from EU case law (Schulte) that accrued leave cannot be carried over indefinitely. However, the limit on the carry-over period to be read into the WTR 1998 had not been determined. This case confirms, subject to appeal, that leave can only be carried over for 18 months from the end of the leave year. Accrued leave which goes beyond that cut-off period will lapse. It remains important for employers to actively manage any cases of long-term sickness absence to avoid significant annual leave costs adding up.
- Facts The case was brought by a Spanish trade union against Tyco, a multinational fire and security company which closed its network of regional offices in Spain in 2011. Tyco employed technicians who installed and maintained security equipment at customers’ premises. The technicians were provided with a vehicle and travelled from their own homes to appointments. Tyco argued that the technicians’ travelling time was a “rest period” rather than working time. The CJEU disagreed, stating that during such journeys the workers are at work, at their employer’s disposal and carrying out their duties or activities. Held The case held that if you have workers who don’t have an office base or location, then for the purposes of the Working Time Regulations, working time starts when they leave home and not when they visit their first job. This may be important for those of you with home-based workers as it may effectively change the way that the UK Working Time Regulations will be applied. As an employer, you need to look at whether your employees are working in excess of the average 48 hour limit per week when taking into account their time spent travelling to and from their first/last job. If they are, you must either reduce their working hours accordingly or invite the employee to opt-out of the 48 hour weekly limit (if they haven’t already); You also need to check if the employees are receiving sufficient rest breaks Employees are entitled to the following rest breaks: a. a daily rest period of 11 hours' uninterrupted rest per day; b. a weekly rest period of 24 hours uninterrupted rest per week and c. a rest break of 20 minutes when a day's working time is more than six hours. Are the employees' receiving sufficient holidays? This will only become an issue in circumstances where an employee's holidays are measured and provided in hours rather than days or weeks. For example, if an employee that works three days per week at 7 hours per day (not including travel to their first and from their last jobs) is contractually entitled to 117.6 hours of holiday per year (that is 21 hours per week multiplied by their 5.6 weeks' statutory entitlement), this will no longer be sufficient following the ECJ ruling. Such employees would need to receive an increase in their annual entitlement to reflect the increased working hours. However, again this should not affect how much pay they receive per day's holiday; Employers need to check if the wording of the employees' contracts provide them with an enhanced right to pay during travel time to and from work. The National Minimum Wage Act makes it clear that, in relation to pay, time spent travelling to and from an employee's place of work, or their first/last assignment, does not count as working time. However, employers may need to look at the total remuneration earned over the relevant pay reference period, and dividing the total remuneration by the total numbers of hours worked. Legal Background “Working time” is defined as: any period during which a worker is working, at his employer's disposal and carrying out his activity or duties; any period during which he is receiving relevant training; any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement. “Rest period” – any period that is not working time Neither the Directive nor the WTR state whether travel to and from a place of work or between places of work should be considered working time. Non-statutory guidance on GOV.UK states that "time spent travelling for workers who have to travel as part of their job, e.g. travelling sales reps or 24-hour plumbers" is included in working time, but that "normal travel to and from work" and "travelling outside of normal working hours" are not.
- Facts Claimants were an employee health and safety representative and a union shop steward. On Wednesday 11 September 2013, Mr Edwards attended a meeting for health and safety representatives. He had been scheduled to work three 12-hour night shifts that week, from 7 pm to 7 am on Tuesday, Wednesday and Thursday nights. The meeting started at around 1 pm on Wednesday, and finished at around 4 pm. He had been excused from working his Tuesday night shift, and he was allowed to start his Wednesday night shift three hours late, at 10 pm instead of 7 pm. On Friday 20 September, Mr Morgan attended a trade union meeting in his capacity as a shop steward. The meeting ran from 9 am to 1 pm. He had been scheduled to work four 12-hour night shifts that week, from 7 pm to 7 am on Friday, Saturday, Sunday and Monday nights. He was therefore not scheduled to work on Thursday night, and he was allowed to delay the start of his Friday shift by three hours, starting at 10 pm rather than 7 pm. On 1 October 2013, the Regional Officer for the Unite trade union complained to Encirc that (among other things) it was breaching the union representatives' right to 11 consecutive hours' rest in every 24-hour period under the WTR. At first instance, on the WTR point, The tribunal held that time spent on trade union duties or attending health and safety committee meetings was not "working time" for the purposes of the WTR 1998. Although the claimants could be said to be "working", they were not at their employer's disposal, nor were they carrying out their activities or duties. Held The EAT allowed the appeal on the definition of working time under the WTR 1998, and remitted the case to the employment tribunal. In regards the definition of “working time” the EAT held: there was no argument as to the fact that the employers were working; being at the employer's disposal does not mean being at the direction and control of the employer throughout the period. It was not in dispute that the claimants were required to attend the meetings, and that the employer had decided when and where the meetings were to be held and how they were to be conducted. It was not in dispute that if the meetings had taken place during a shift, the employer could have directed the employees to leave the meeting and undertake other duties. The EAT took the view that where the meeting takes place between shifts, the employer could direct the employees to leave the meeting so as to take a sufficient break in order to start their shift on time. Although the activities and duties discharged by the employees at the meetings had been assigned by the union/employee side rather than by the employer, the EAT took the view that they were carrying out activities or duties that were, in the broader sense, of benefit to the employer's business, and were doing so because of the employment relationship. In the EAT's view this was sufficient. Key points This is the first EAT decision on whether time spent attending union meetings or health and safety meetings counts as working time under the WTR 1998. EAT held that the time could be working time and has remitted case back to ET for determination. Employers may wish to err on side of caution given broad approach taken by EAT. Furthermore, unions may wish to negotiate to widen or clarify the scope of union duties that may constitute working time in a collective agreement in the light of this case
- Statutory v contractual holiday pay
- Sparks and ors v Department for Transport, High Court; Norman and anor v National Audit Office; London Borough of Hillingdon v Gormanley and ors Background The DfT was trying to introduce a new standard "trigger point" across its various agencies in relation to the number of absences required before an official absence management process was initialised. In some cases the trigger point was reduced from 21 days’ absence to 5 days’ absence. The court found that the current trigger point was incorporated into the employees' contracts of employment, and that therefore the DfT could only make changes to it if, in accordance with the provisions of the handbook, that change was not detrimental. DfT argued that the changes weren’t detrimental. The court held that the suggested change was, in fact, detrimental to the employees, and made a declaration that reinstated the employees' original contractual terms. Key points Clauses attempting to give employers the right to make unilateral changes to employment contracts will be scrutinised by the courts and therefore must be clear, unambiguous and sufficiently broad to give an employer discretion to make the desired changes.
- Revised ACAS guidance to the Code on Disciplinary and Grievance Procedures on has been published providing new guidance relating to a worker's right to be accompanied. It confirms that an employer must agree to a worker's request to be accompanied by any chosen companion from one of the statutory categories, namely a fellow worker, trade union representative or official. The changes explain that a request to be accompanied must be "reasonable“. This applies to the making of the request, not to the worker's choice of companion. Acas has also inserted guidance to the effect that a worker can change their chosen companion if they wish, and can do so without waiving their right to change their choice again. The guidance on the practicalities of making a request is now a matter of good practice, rather than a legal requirement. An employer should be given enough time to make any necessary arrangements to allow the chosen companion to attend the meeting. The employee should give the employer the name and status of their chosen companion. However, the effect of these changes may be limited given that compensation for not allowing a companion is likely to be nominal.
- Stevens v University of Birmingham Professor Stevens became the subject of an internal investigation for misconduct and was invited to an investigation meeting. He was told he could be represented by trade union representative or another employee of the university. S was not a member of a trade union and had no one he felt he could bring from the university. He wanted to be accompanied by Dr Palmer, a Medical Protection Society representative. The university refused and S applied to High Court for declaration that he could bring Dr Palmer. Held, that he had no express or implied right to bring anyone other than a trade union representative or another employee of the university. However, under the circumstances of the case, it was a breach if the implied term of trust and confidence by the university to not exercise its discretion and allow S to be accompanied by Mr Palmer. In reaching decision, court noted S had been allowed to be accompanied by Mr Palmer up to the point of the investigation meeting; that witnesses were allowed to be accompanied by those that were not trade union members or uni members; and that the result would be that S would be unaccompanied at the meeting. Professor Stevens, has been employed by the university of Birmingham in the role of Chair of Medicine since 2004. He became subject of an internal investigation for misconduct and was invited to an investigation meeting. He was told he could be represented by trade union representative or another employee of the university. S was not a member of a trade union and had no one he felt he could bring from the university. He wanted to be accompanied by Dr Palmer, an MPS representative. The university refused and S applied to High Court for declaration that he could bring Dr Palmer. Held, that he had no express or implied right to bring anyone other than a trade union representative or another employee of the university. However, under the circumstances of the case, it was a breach if the implied term of trust and confidence by the university to not exercise its discretion and allow S to be accompanied by Mr Palmer. In reaching decision, court noted S had been allowed to be accompanied by Mr Palmer up to the point of the investigation meeting; that witnesses were allowed to be accompanied by those that were not trade union members or uni members; and that the result would be that S would be unaccompanied at the meeting.
- The Small Business, Enterprise and Employment Act covers a number of areas of legislative reform, the stated aim of which is to reduce the barriers that can hamper the ability of small businesses to innovate, grow and compete. inserts two new sections into the Employment Rights Act 1996. Received Royal Assent on 26 March 2015 This new act makes exclusivity clauses in zero hours contracts unenforceable. This means that employers can no longer restrict employees from working for only one employer when they are employed on a zero-hour contract. The new act also gives the government wide-ranging powers to make further provisions in relation to zero hours contracts in the future. In September 2015, the ONS published a report looking at the usage of zero-hour contracts by sector. As of January 2015, 25% of the workforce within the education sector were on zero-hour contracts.
- Section 152 of the SBEEA 2015 amends the National Minimum Wage Act 1998 (NMWA 1998) and came into force on 26 May 2015 The maximum £20,000 penalty for non-payment now applies in respect of each worker who has not been paid the NMW rather than per notice as was the case previously. Financial penalty is 100% of the arrears owed to each worker, subject to a maximum of £20k per worker
- The new ‘Small Business, Enterprise and Employment Act 2015’ inserts two new sections (27A & 27B) into the Employment Rights Act 1996. This new act makes exclusivity clauses in zero hours contracts unenforceable. This means that employers can no longer restrict employees from working for only one employer when they are employed on a zero-hour contract. Sets out statutory definition "A contract of employment or other worker's contract under which the undertaking to do or perform work or services is an undertaking to do so conditionally on the employer making work or services available to the worker, and there is no certainty that any such work or services will be made available to the worker." (Section 27A(1), ERA 1996.)
- Statutory pay for Maternity, Paternity, adoption and shared parental pay has increased from £138.18 per week to £139.58 per week. Recap - Unpaid parental leave is available to those who have parental responsibility for a child and have been employed by their employers for more than 1 year. 18 weeks per child in total can be taken but cannot be transferred from one parent to another. Update: 5 April 2015 As of the 5 April 2015 unpaid leave can be taken up to child’s 18th birthday. Leave must be taken as whole weeks, with the maximum leave per year being 4 weeks. Antenatal appointments Prospective fathers and partners can take unpaid leave to attend two-antenatal appointments Adoption leave and pay Primary adopters adopting children after 5 April 2015 are entitled to take paid time off for up to five adoption appointments and the secondary adopters for up to two appointments. Statutory adoption pay now mirrors statutory maternity pay and adoptive parents can access the shared parental leave and pay system Surrogacy The primary adopter of children born through a surrogacy arrangement can take adoption leave and pay provided the prospective parent has applied for a 'parental order'.
- Shared parental leave Shared parental leave was introduced on the 5 April 2015. Shared parental leave applies to children born or adopted after the 5 April 2015. It was designed to provide greater flexibility to parents and carers in deciding how to care for their child and redress the balance of caring responsibilities between men and women with the overall goal of further equal treatment of women. Couples can now decide to share or split parental leave. They can take this leave either at the same time, or one after another. However, all of the leave must be taken before the child reaches their 1st birthday. This type of leave also applies to those adopting and must be taken before the end of the first year of adoption. The mother of the child is entitled to take 52 weeks maternity leave, 39 of which will be paid. She is required to take 2 weeks paid compulsory maternity leave. This will leave 50 weeks, 37 of which will be paid, to be split between herself and one other person. Extension to grandparents The Chancellor announced on the 5 October 2015 that he will extend shared parental leave an pay to working grandparents. The aim is to implement the policy by 2018. The government will begin consulting on this policy in the first half of 2016. Compulsory gender pay reporting The Government has published plans to introduce mandatory reporting of information on gender pay differences for employers with more than 250 employees. The aim is that it will increase transparency and by do so, reduce the gender pay gap.
- There are some conditions that employees must satisfy before they can access shared parental leave. The individual wishing to take shared parental leave must share the main responsibility for caring for the child with the named partner. Adoptive parents and those using a surrogate can access Shared Parental Leave and pay. For a parent to be eligible to take Shared Parental Leave they must be an employee and they must pass the continuity of employment test. This means they must have worked for the same employer for at least 26 weeks at the end of the 15th week before the child’s expected due date or the week in which they were notified of a match. They must also be still working for the employer at the start of each leave period. They must also be deemed to be ‘economically active’. In the 66 weeks leading up to the baby’s expected due date or matching date, the person must have worked for at least 26 weeks and earned on average at least £30 a week in any 13 weeks. In turn, the other parent in the family must meet the employment and earnings test. Once it is established that the individuals are entitled to shared parental leave, the mother must cut short her maternity leave. The remaining maternity leave can then be split. Employer must accept applications for continuous leave in writing within 14 days of the employee giving notice If the employee applies for discontinuous leave, the employer can confirm or agreed a modification of that leave in writing within 14 days of notice. Employers are not under any statutory obligation to respond to notice of SPL, but if they give no response, then an employee can take the leave outlined in their notice. As an employer, you can ask for proof of the birth or adoption, such as: birth certificate/documents re adoption name and address of other partner’s employer It’s a good idea for employers to have a shared parental leave policy.
- Dogherty – 2007 case TA dismissed in June 2005 for misconduct. 3 hearings as part of the disciplinary procedure D recorded the hearings without knowledge of panel members One recording included the panel’s private deliberations EAT allowed the recordings of the hearings where D was present to be included as evidence EAT ruled that D could not submit recordings of panel’s deliberations as there was an important public interest that parties should comply with the ‘ground rules’ on which disciplinary and appeal proceedings were based. Established rule that when an employee secretly records an internal meeting or hearing with the employer, the recording of any parts of the meeting where the employee is present may be admissible before an ET if the tribunal believes it is relevant, but any covert recording of private discussions of the employer’s disciplinary panel will not be admissable on the grounds of public policy. So does this mean you don’t have to worry about whether or not an employee might have left a device recording in their bag or under the table? Not necessarily…
- Case of Punjab National Bank and Gosain established an exception to the rule in Dogherty. Ms Gosain employed from May 2011 until she resigned in January 2013 Prior to resignation she attended a grievance hearing and a disciplinary hearing. She secretly recorded both the public discussions at the hearings and the private conversations of the panel Brought claims of sexual harassment, sex discrimination and constructive unfair dismissal. the bank objected to the admissibility of the private contents of the recordings, which ran for approximately 15 minutes at the grievance hearing and 30 seconds at the disciplinary hearing. The private panel comments alleged to have been recorded during a break in the grievance hearing included the bank's managing director giving an instruction to dismiss Ms Gosain, and the manager hearing the grievance saying that he was deliberately skipping the key issues raised by Ms Gosain in her grievance letter, namely, that she was not allowed a proper lunch break and issues concerning her pregnancy. At a preliminary hearing, an employment judge held that all of the recordings were admissible as evidence at the final hearing. The bank appealed. The EAT dismissed the appeal. It noted that the employment judge had considered that the case could be distinguished from Dogherty because the private comments of the panel "were not part of the deliberations in relation to the matters under consideration" at the grievance and disciplinary hearings. the tribunal was entitled to find that the private comments recorded were not the type of comments that fell within the "ground rules" principle set out in Dogherty. What can you do to minimise the risk of covert recordings becoming admissable? It will always be for the tribunal to decide whether or not recordings are admissible, however the following may assist if you are ever faced with a situation where an employee has covertly recorded a hearing or panel discussions: Expressly prohibit recording of hearings in you disciplinary and grievance policies Ask employee to confirm they are not recording the hearing at the start of each hearing Get the panel to move to a separate room to carry out their deliberations, to avoid a situation where a recording device has been left in the room by an employee
- Before 10 March 2015, employers were able to force job applicants and employees to obtain and then provide a copy of their criminal record by means of a subject access request under the DPA, as a condition of employment or continued employment. Doing so is now a criminal offence. It is a criminal offence for any person to require another person to supply him with details of their criminal record by means of a SAR under the DPA. There is an exception where an individual’s criminal record is required by law or is justified in the public interest. This could, for example, cover childcare workers and government workers who have regular access to highly classified information. An employer who breaches this new law will be liable on conviction to a potentially unlimited fine.
- Facts Mr Smith worked for the British Waterways Board (BW) as a manual worker from 1 April 2005 to 4 June 2013, when he was summarily dismissed for gross misconduct. His team was responsible for the maintenance and general upkeep of canals and reservoirs. It worked on a rota pattern and was on standby for one week in every five, during which employees were not permitted to consume alcohol. BW's disciplinary policy provided that it could dismiss employees for gross misconduct and cited serious breaches of its policies as an example of gross misconduct. The social media policy prohibited "any action on the internet which might embarrass or discredit BW (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms)”. During his employment, Mr Smith raised a number of grievances. In May 2013, when a mediation was arranged to deal with those grievances, one of Mr Smith's managers supplied incriminating comments Mr Smith had made on his Facebook page to BW's HR team in order to demonstrate that the issues were not “one-sided”. In 2011, Mr Smith had posted a comment relating to drinking alcohol whilst on standby. Mr Smith's manager had known about this since 2012 and had discussed it with the BW HR team but they had not raised them with Mr Smith or investigated them further. The comment, and others found during a subsequent search by the HR team, referred to supervisors in derogatory terms and to Mr Smith drinking alcohol whilst on standby. The tribunal found that Mr Smith had been unfairly dismissed. Although BW had followed a fair procedure, the decision to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted. This was because BW had not taken into account the mitigating factors of Mr Smith's unblemished service record and that BW had been aware of the comments for some time. In relation to the drinking alcohol whilst on standby incident, the tribunal found that there had been no emergency on the night in question (and therefore no impact on Mr Smith's colleagues and no risk to life or property) and that BW had not had any subsequent difficulty with employees drinking alcohol whilst on standby. Held The EAT allowed the appeal, and substituted a finding that the dismissal was fair. The tribunal had substituted its own views for that of the employer when it held that BW did not give weight to the mitigating factors. This was a matter for an employer to decide and BW's decision had been within the range of reasonable decisions open to an employer. Also, the tribunal had made its own findings of fact in relation to Mr Smith drinking alcohol whilst on call, by inferring that the incident had no impact and that BW had no issues with employees on standby drinking alcohol
- Case shows that an employer who failed to respond to an employee’s earlier act of misconduct will not necessarily lose the opportunity to take action at a later date. Misconduct in this case predated the dismissal by 2 years and the employer had known about it for a considerable length of time before it decided to take action. The EAT did not criticise the employer for relying on it to dismiss the employee. Employer deliberately searched for evidence against the employee who had raised grievances. Misconduct in this case predated the dismissal by 2 years and the employer had known about it for a considerable length of time before it decided to take action. The EAT did not criticise the employer for relying on it to dismiss the employee.
- The EAT agreed that it was a reasonable decision for the employer to lose trust and confidence with the employee when he had made public remarks about being under the influence of alcohol whilst on standby (which was a risk to public health) and that he had breached his position of trust. Although this case will provide support when looking at dismissal for posts made on facebook, this is an area which still needs to be exercised with caution.
- This is another case which concerns an employer going on a ‘fishing expedition’. Mr Williams was employed as technical director by Leeds United Football Club (the club) from August 2006 until his summary dismissal for gross misconduct on 30 July 2013. The terms of his employment were orally agreed with the chairman, Mr Bates, at the outset of his employment and were not confirmed in writing. The orally agreed terms included an entitlement to 12 months' notice. The club decided to restructure and, on 23 July 2013, gave notice of redundancy to Mr Williams. It stated that he was entitled to three months' notice, in accordance with its standard senior management contract. On the following day, 24 July 2013, the club wrote to Mr Williams setting out two allegations of gross misconduct and inviting him to a disciplinary hearing on 29 July 2013. The allegations concerned an email Mr Williams had received on 28 March 2008 and then, on the same day, forwarded from his work email account to a friend at another football club. The email was alleged to contain pornographic images. The first disciplinary allegation was that Mr Williams had stored pornographic material using computer equipment belonging to the club and forwarding that material to a person outside of the club. The second allegation was that Mr Williams had forwarded confidential information to his personal email account. Mr Williams asked for the hearing to be postponed but the club refused and went ahead with the hearing on 29 July 2013 in his absence. On 30 July 2013, the club wrote to Mr Williams informing him that he had been found guilty of both allegations, which the club considered to be gross misconduct, and dismissing him without notice or pay in lieu of notice. The letter also stated that the club considered Mr Williams to be in breach of its internet and email code of practice and considered that the images contained in the email were capable of giving great offence. The letter advised that, if seen by other employees of the club, the email could give rise to a claim of sexual harassment for which the club could be liable. In addition, the fact that the email had been forwarded from Mr Williams' work email address could potentially bring the name of the club into disrepute. Mr Williams appealed his dismissal. The appeal was heard by Mr Hunt, the chief executive of the club, who conducted a complete rehearing since Mr Williams had not attended the disciplinary hearing. Mr Hunt upheld the appeal in respect of the second allegation. However, he upheld the decision to summarily dismiss Mr Williams for gross misconduct in respect of the first allegation relating to the email. Mr Hunt accepted that Mr Williams may not have received a copy of the club's code of practice on internet and email use. However, he considered that, as a member of the senior management team, and someone whom young players and prospects looked up to as an authority figure, Mr Williams should have known that his actions were unacceptable. Mr Hunt held that forwarding the email and attachment amounted to a blatant misuse of the club's computer equipment, a fundamental breach of Mr Williams' duties to the club and gross misconduct, and had the effect of destroying the relationship of trust and confidence between the club and Mr Williams. Mr Williams issued a claim for damages in the High Court in respect of his 12 months' notice pay, loss of pension, other contractual benefits and a statutory redundancy payment. After proceedings had been issued and it had filed its defence, the club discovered that, on 28 March 2008, Mr Williams had also forwarded the email containing the pornographic images to two other people: a junior female employee at the club and to another male friend at another club. The club amended its defence accordingly. June 2013: senior managers decided to find a way to avoid paying Mr Williams 12 months’ notice pay and actively sought evidence of gross misconduct. A firm of forensic investigators were instructed to investigate Mr Williams’ computer. 22 July 2013: decision made not to pay Mr Williams’ his 12 months’ notice 23 July 2013: Mr Williams’ given notice of redundancy. At this time the club didn’t know about the pornographic email. 24 July 2013: club learned of the email. Club wrote to Mr Williams setting out the disciplinary allegations Mr Williams had no sight of the club’s code of practice on internet and email use Court held that the club was entitled to rely on its discovery of further gross misconduct after the dismissal to justify its decision to dismiss. Court held that Mr Williams’ actions in sending the email amounted to a breach of the implied term of mutual trust and confidence such that he was in repudiatory breach of contract entitling the club to summarily dismiss.
- Mr Williams’ conduct in forwarding the email to a junior employee and two friends outside the club was a breach of the implied term of mutual trust and confidence. His conduct was likely to seriously damage the relationship of trust and confidence between himself and the club and was sufficiently serious to amount to a repudiation Mr W held a very senior management position at the club The images attached to the email went beyond being harmless and were capable of causing offence Sending the images to a junior, female, employee by a senior manager who had significant influence over her career may have caused offence and left the club vulnerable to a harrassment claim. The club’s reputation was important when securing and retaining supporters and sponsors. Images were sent from a club email address, so could easily be associated with it. The media was likely to be interested in a story involving the distribution of such material within the professional football world. Also note: The fact that Mr W hadn’t been provided with a copy of the internet and email policy was not important. It should have been obvious to him that the club’s emails system shouldn’t be used to send obscene and pornographic images. It wasn’t relevant that Mr W continued to work for the club for 5.5 years after he forwarded the emails. The court looked at whether or not his conduct was sufficiently serious to amount to a repudiatory breach when it was discovered by the club. Club was not prevented from relying on Mr W’s breach by its own actions in actively seeking to find evidence to avoid paying his notice.
- "Whistleblowing" refers to the act of reporting or exposing wrongdoing, either within an organisation, or externally, for example to a regulator or the press. Following a series of disasters and financial scandals in the 1980s and early 1990s, there was a widespread recognition that many organisations had a culture that discouraged the reporting of wrongdoing and viewed whistleblowing as an act of disloyalty to colleagues or to the organisation as a whole. Those who did speak up were either ignored or, worse, suffered damage to their careers in one way or another. This culture and its damaging effects were confirmed in official reports into (to name one) the sinking of the Zeebrugge ferry. Zeebrugge: investigation revealed that staff reported concerns about ferries leaving ports with doors open five times, but the issue never got beyond middle management. Rights only if employee has made a “protected disclosure” that in his or her reasonable belief was made in the public interest.
- Facts Employee, Mr Barton (B), was told by a colleague that a manager had sent 100s of documents containing personal information about the colleague to their personal computer. Employee telephoned ICO for advice and told ICO of the claims. He then made management aware of the call to the ICO. His manager queried whether he had sought authorisation prior to contacting the ICO and when B said he hadn’t, the manager informed B that he would be investigating the issue fully and in the meantime B was not to contact the ICO again without consulting a manager. B telephoned the ICO to ask if he needed authorisation from management to make the disclosure – ICO said no. B was also subject of other written warnings and was eventually dismissed. He brought proceedings and amongst other things argued he had made protected disclosures Held On issue of disclosures: 1st contact with ICO was qualifying disclosure as B had reasonable belief that there was failure to comply with DP law. However, not a protected disclosure as B had not attempted to verify the truth of the claims, which was relatively easy to do. He had jumped the gun. 2nd contact not a disclosure but a request for advice. On issue of management instructions, EAT declined to rule as not an issue on appeal but did give view that not unlawful as instruction was specific (in that it was only during course of investigation) and was not a blanket ban (i.e was a direction not to contact without discussing with manager first – which was reasonable). Decision given on very narrow facts of case and if disclosure was found to be protected management instruction would have been void.
- In 2013 – requirement that disclosure be made in the public interest. Chesterton Global Ltd and anor; Underwood v Wincanton plc UKEAT/0163/15 Key points Cases involving individual contractual disputes can be held as being within the public interest. There will need to be some form of public interest element but the definition of “public interest” has been widened so as to include: a potentially small section of the public (Chesterton Global Ltd v Nurmohamed UKEAT/0335/14 as applied in Undwewood); and/or A subjective test – it is enough that the person making the disclsoure has a reasonable belief that there is a public interest element (here, the issue that some drivers had alleged vehicles were unfit for the road could potentially be enough to amount to a public interest ground) Chesterton is being appealed to the Court of Appeal but is not due to be heard until November 2016. In the meantime, it is likely that further cases involving individual contractual disputes will be held as being within the public interest following this decision. Facts – Chesterton An employee complained about the misstatement of £2 million worth of costs and liabilities in his employer’s accounts, which could have a negative impact on his own bonus and that of 99 of his colleagues. Facts – Underwood Mr Underwood was an HGV driver with Wincanton plc. In November 2013, Mr Underwood, together with three of his colleagues, submitted a written complaint, regarding their terms and conditions of employment, including, in particular, the way in which overtime was allocated among drivers. Mr Underwood was dismissed in June 2014. Following his dismissal, Mr Underwood issued a claim in which he submitted, among other things, that the November 2013 complaint amounted to a protected disclosure under section 43B(1)(b) ERA 1996 and that his dismissal was automatically unfair. He submitted that the fact that some of the drivers who were granted less overtime had raised concerns regarding the safety and road-worthiness of vehicles. These references could have been interpreted as implying that there was a wider public interest in the case relating to road safety.
- Coleman: employee who cared for her disabled son (and was not herself disabled) could bring a claim for associative discrimination Thompson: third party carried out a protected act, Mr T complained that he had been victimised because of that protected act. Question is whether, in the mid of the employer, the protected act of a 3rd party was the reason for the treatment of the employee. Claim for associative victimisation is possible. Chez Razpredelenie: european case which involved discrimination in the provision of services, however it is still relevant to the employment context. Advocate General stated that the claimant may have suffered indirect discrimination by association. ECJ is still to rule. In the EqA the concept of discrimination by association is specifically limited to direct discrimination. If the ECJ agrees with the AG then this would represent a major departure from existing UK law.
- Hainsworth v Ministry of Defence Key points Employers do not have a duty to make reasonable adjustments in respect of working arrangements of a non-disabled employee so in order that they can better provide for the needs of a disabled dependent. However, employers should be cautious in these situations as such an employee may be able to: Make a flexible working request under the ERA 1996; and/or If it could be shown that women were more likely than men to require such a change, then any refusal could be indirect sex discrimination requiring employer to show refusal was proportionate means to legitimate aim Facts H was a civilian employee of the MoD working as a teacher at an Army garrison in Germany. She had a teenage daughter with Down’s syndrome and the. While the MoD provided educational facilities for the children of service and civilian personnel serving abroad, it did not provide any facilities in Germany for children with special needs. This meant that H’s daughter could not be educated on the base. In August 2011 H submitted a formal request to be transferred to a location within the UK so that her daughter could receive suitable education. This request was rejected, and she brought an employment tribunal claim alleging that the MoD’s refusal to transfer her to the UK either in her existing role or in an alternative role amounted to a failure to make reasonable adjustments under the EqA. Her case was dismissed by the employment tribunal and, subsequently, the EAT, on the basis that as she was not disabled, her employer had no duty to make a reasonable adjustment in her favour. The fact that she was ‘associated’ with a disabled person was not sufficient for the duty to apply. H appealed to the Court of Appeal. Judgment Before the Court, H accepted that the duty to make reasonable adjustments under the EqA only applied when a PCP placed a disabled employee or job applicant at a substantial disadvantage. However, she argued that Article 5 of the Directive was phrased in such a way that it obliged employers to make reasonable adjustments to a PCP applied to a non-disabled employee, to enable a disabled person associated with that employee to participate in employment or undergo training; meaning, in her daughter’s case, the opportunity to receive special needs education. There was no specific provision to the effect that the disabled person who would benefit from the adjustment had to be employed by the employer in question. H argued that the EqA should be read so as to give effect to this interpretation of Article 5, or, if this was not possible, that she was entitled to rely directly on Article 5 against the MoD as an emanation of the state. The fundamental question for the Court of Appeal, therefore, was whether Article 5 supported H’s case at all. Lord Justice Laws, giving the leading judgment, considered that the whole focus of Article 5 was on the provision to be made by employers for their disabled employees, prospective employees and trainees. This was supported by the wording of recital 20 to the Directive, which referred to measures ‘to adapt the workplace to the disability’. None of the recitals or any of the other pieces of EU legislation on which H sought to rely suggested that Article 5 was intended to benefit disabled persons who were themselves neither employed nor applying for employment with the relevant employer. Moreover, if the beneficiary of a reasonable adjustment under Article 5 could be someone other than the employee, then there was no indication of who that person might be. In Laws LJ’s view, that would render Article 5 ‘hopelessly uncertain’.
- Facts Mr Stoute was employed by Metroline Travel Ltd (Metroline) as a bus driver before he was dismissed for gross misconduct. He suffered from Type 2 diabetes (and as such abstained from sugary drinks), and brought claims for unfair dismissal, discrimination arising from disability, and a failure to make reasonable adjustments. At a preliminary hearing, the employment tribunal decided that Mr Stoute was disabled within the meaning of the EqA 2010, having regard to paragraph B14 of the EqA 2010 guidance, which states that "where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect." However, at the full hearing, Mr Stoute's substantive complaints were all dismissed. Metroline appealed against the decision at the preliminary hearing. Although Mr Stoute's claims had already been dismissed, Metroline claimed that it had a workforce with a number of people who suffered from Type 2 diabetes, and therefore the appeal was more than just academic. If the original judgment stood, then it could be used by other employees to support an argument that they were disabled. Metroline also argued that the decision was of public importance. Mr Stoute was debarred from participating in the appeal. Metroline argued that the tribunal erred by not considering the entirety of the EqA 2010 guidance, and in particular, paragraph B7 Decision In the EAT's view, the reference in paragraph B12 of the EqA 2010 guidance to a treatment for an impairment was not wide enough to encompass an abstention from sugary drinks: "...while a particular diet may be regarded as something which is to be ignored when considering the adverse effects of a disability, I do not consider that abstaining from sugary drinks is sufficient to amount to a particular diet which therefore does not amount to treatment or correction." (Paragraph 11.) The tribunal should have also had regard to paragraph B7, to which paragraph B12 cross-refers. As for the question of disposal, the EAT appeared to disagree that the question was one of public importance, but acknowledged that Metroline had a legitimate concern in having this matter disposed of, and therefore allowed the appeal.
- Commercial organisations operating in the UK (that is, organisations that supply goods and services from or to the UK and have a global turnover above £36 million) are required to publish a slavery and human trafficking statement each financial year, which sets out the steps they have taken to ensure there is no slavery or human trafficking in their business or supply chains. Transisitonal provisions: the obligation will only apply in each financial year ending on or after 31 March 2016. An organisation can comply by stating that it has taken no steps during the financial year to ensure that their business and supply chains are free of slavery and human trafficking. This could lead businesses to be subject to closer scrutiny and public pressure to comply. There is no prescribed form for such a statement. Suggested inclusions are: The organisation’s structure, it’s business and its supply chains It’s policies relating to modern slavery and human trafficking Its due diligence processes in relation to modern slavery and human trafficking. The parts of its business and supply chains where there is a risk of slavery and human trafficking taking place, and the steps taken to manage that risk. Its effectiveness in ensuring that slavery and human trafficking is not taking place in its business or supply chains, measured against such performance indicators as it considers appropriate. The training about slavery and human trafficking available to its staff. If the organisation has a website, the statement must be published don their If there is no website, it must provide a copy of the statement to anyone who makes a written request for one within 30 days of receipt of a request Draft and publish statement Detail activities undertaken to eliminate slavery and trafficking from business Risk analysis and supply chain mapping to estimate risk of slavery in supply chains Reviewing statements of organisations which are a part of your supply chain
- From 26 May 2015, English apprenticeships have replaced apprenticeships under the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA) in England. Transitional provisions: Existing apprenticeships made under ASCLA (prior to 26 May 2015) are unaffected and the old statutory regime under ASCLA will continue to apply. Apprenticeships entered into on or after 26 May 2015, in sectors where there is no approved apprenticeship standard and the apprenticeship takes place under an apprenticeship framework, are also covered by the old statutory regime. Apprenticeships entered into on or after 26 May 2015, in sectors where there is an approved apprenticeship standard, are covered by the new regime A list of the apprenticeship standards are available on the government’s website. An approved English apprenticeship will take place under an "approved English apprenticeship agreement" or will be an "alternative English apprenticeship" and, in each case, must satisfy conditions to be specified in regulations to be published by the Secretary of State. Such schemes will still be classed as contracts of service. Conditions: Must be in a sector for which the Secretary of State has published an approved apprenticeship standard. Must provide training in order to assist the apprentice to achieve the approved apprenticeship standard in the work done under the agreement. Must satisfy any other conditions specified by the Secretary of State in regulations
- CA dismissal Held, mere fact that level of cases had dropped since introduction of fees not enough, concrete evidence needed showing people had been prevented from bringing cases due to fees. Lord Justice Underhill did state there was a “strong suspicion that so large a decline is unlikely to be accounted for entirely by cases of “wont pay” and that it must also reflect at least some cases of “cant pay”” Fees review In June, G/mnt began post introduction review of fees by announcing terms for reference, but not report has been issued. In November, the House of Commons Justice Committee heard evidence on the impact of the introduction of employment tribunal fees. The vast majority of the published responses expressed concerns about tribunal fees, including that their introduction has restricted access to justice for claimants and reduced the number of meritorious as well as vexatious claims.
- On 15 July 2015, the government published a new Trade Union Bill 2015-2016 (the Bill) proposing amendments to the Trade Union and Labour Relations (Consolidation) Act 1992. First reading took place on 15 July 2015 and the Bill passed second reading on 14 September 2015. Following second reading the House of Commons agreed a programme motion which schedules the public bill committee to conclude by 27 October 2015, but could finish earlier. The Bill aims to reform various aspects of the law on industrial action and trade union obligations and activities. The proposed reforms include increasing ballot thresholds, extending the notice of industrial action required to be given to employers and a new expiry date for action to be taken following a ballot. The Bill would also introduce more stringent requirements for unions to supervise picketing. Ballot thresholds Currently, a strike or other industrial action will be unlawful unless at least 50% of trade union members who responded to the relevant ballot voted in favour of the action. The Bill proposes an amendment to introduce the additional requirement that at least 50% of all eligible members must have voted. The number of people voting includes those who return spoiled or otherwise invalid ballot papers. For those in important public services, industrial action will only be allowed where 40% of eligible members have voted in favour. Ballot results Currently, members are informed of how many votes in a ballot there were in total, how many people voted in favour and how many against the industrial action, and how many were spoiled. The new amendments would mean that members would also be told of the number of individuals entitled to vote and whether or not the number of votes cast was 50% of the entitled members. Notice requirements for industrial action Notice given to employers of industrial action would be increased from seven days to 14. Expiry date of industrial action Currently, provided that industrial action is started within a four-week period, there is nothing to prevent a union from suspending and restarting action in reliance on the original ballot, provided that is the same industrial action. The Bill introduces a new four-month time limit after a ballot in which strike action must take place. Supervision of picketing The Bill proposes new fairly detailed requirements for picketing. A failure to comply will make the picketing unlawful and therefore actionable in tort. The union must: Appoint a person, who is "familiar" with any codes of practice dealing with picketing, to supervise the picketing. Take "reasonable" steps to inform police of the supervisor's name, where the picketing will take place and how to contact the picket supervisor. Provide the supervisor with a letter stating that they are authorised to act as such. The supervisor must: show their authorisation letter from the union to anyone who reasonably asks to see it, including the police. Be present at the picketing or readily contactable and able to attend at short notice. If present at the picketing, wear a badge, armband or anything else which could identify them. Facility time The Bill proposes a new definition of "facility time" to cover the different types of time off which a union official can take. Some public sector employers may be required to publish information about facility time. The information would include things like the number of union officials the employer has and the amount of time spent by union officials on facility time.
- The apprenticeship levy will come into effect in April 2017. · It will be payable by employers across all sectors in the UK at 0.5% of paybill. · All employers will receive an annual allowance of £15,000 against the levy, in effect making the levy payable only to the extent that the employer's paybill exceeds £3 million per year. · This means that fewer than 2% of employers will pay any levy at all. · Connected employers, such as a group of companies, will only receive one allowance. · Paybill will be calculated based on total employee earnings but not including benefits in kind. · Funding for training will be accessible to all employers in England via the Digital Apprenticeships Service. Employers who pay the levy will be able to access more funding than they have put in, through government top-ups. · However, levy funding which is not used within two years will expire, making it available for other employers. · Apprenticeships are a devolved matter in Scotland, Wales and Northern Ireland. Employers in the whole of the UK will have to pay the levy but the government is liaising with the devolved administrations over their arrangements for giving employers access to the funding. · Legislation to allow the imposition and collection of the apprenticeship levy will be introduced in the Finance Bill 2016.
- National Living Wage A premium added to minimum wage for all workers aged 25 and over. Set at £7.20 which is the over 21 national minimum wage rate of £6.70 applicable plus a premium of 50p. The government expects the National Living Wage rate to rise to over £9 by 2020. Increase equates to a £1,200 increase per year for a full-time worker who is currently on the NMW. The National Living Wage is being introduced because there are more people in the UK on low pay compared to other advanced economies. Around one in five UK workers is low paid, compared to an average of only one in six among the other 33 Organisation for Economic Co-operation and Development (OECD) countries The Office for Budget Responsibility has predicted that 60,000 will lose their jobs as a result of the changes. George Osborne has stated that xix million people will benefit. Low Pay Commission will then be tasked with deciding how the National Living Wage will reach the target of £9 by 2020. Measures to ‘balance’ the increased wage costs: reductions in corporation tax (20% to 19% in 2017, and 18% in 2020) and reductions in the national insurance contributions paid by employers. Smaller businesses could expect to see an increase of between 1 – 1.5% in their wage bill, with those operating a straightforward employment model being impacted the most. National Insurance Contributions From April 2016 employers of apprentices under the age of 25 will no longer be required to pay employer NICs on earnings up to the Upper Earnings Limit (£825 per week, £42,380 per year) for those employees.
- Government are required to make regulations by 25 March 2016 which will require all employers with at least 250 employees to publish information about their gender pay gap. Regulations not published yet.
- Immigration Bill 2015-16 Received second readings in the House of Lords on 22 December 2015 Next stage: committee stage scheduled in the House of Lords for 18 January 2016 The Bill contains proposals to curb illegal working and protect the exploitation of migrant workers. Proposes to: Extend the existing criminal offence of knowingly employing an illegal migrant to apply where an employer has ‘reasonable cause to believe’ that a person is an illegal worker. Conviction would increase from two years to 5 years. Create a new offence of illegal working which will enable the earnings of illegal workers to be seized. Give the secretary of state the power to introduce an ‘immigration skills charge’ on certain employers who sponsor skilled workers from outside the EEA, to address the current gap in the UK workforce Require public authorities to ensure that public sector workers in customer-facing roles speak fluent English. Guidance is to be provided in a code of practice which the government has consulted on. Draft appears on gov.uk. Consultation closed on 8 December 2016 and feedback is currently being analysed. Bill is currently making its way through the House of Lords