employment law debrief: understanding the new landscape...14:30 – 15:15 recent developments in...

Session W1 Employment Law Debrief: Understanding

the New Landscape

Employment Law Debrief: Understanding the New Landscape Alan Price, CEO, BrightHR Paul Holcroft, Director of Legal and Advisory, Croner

W1 – Workshop – HR & People Management Essentials Employment Law Debrief: Understanding the New Landscape

The impact of the UK decision to leave the European Union and two elections in two years has meant that the UK employment law framework continues to change. Together with the high profile review of employment practices commissioned in 2016 employment law has been in the spotlight.

Join our expert as we explore:

• a comprehensive update of all that’s new and relevant for HR professionals

• how the current framework of employment law may change in the short to medium term

• the implication of Brexit for employment law and the areas that may change

Today’s Agenda 14:30 – 15:15 Recent developments in employment law 15:15 – 16:00 What to look out for in 2018 and beyond

16:00 – 16:30 How Brexit may shape employment law 16:30 – 17:00 Q & A

Recent Developments in Employment Law

Recent Developments - Agenda • Abolition of Employment Tribunal fees: a level playing field once again;

• Matthew Taylor report on Modern Employment Practices: big changes for employment status?;

• Gender pay gap reporting: not just the BBC’s problem;

• Equal pay: not just the public sector;

• Employee monitoring: interaction with human rights;

• Calculating holiday pay: the continuing case law saga;

• Whistleblowing: what is in the “public interest”?

1 Abolition of Employment

Tribunal Fees

A level playing field once again

Abolition of Employment Tribunal Fees

29 July 2013 – ET fees introduced

Fees were introduced to make the employment tribunal system pay for itself and to weed out spurious claims

£390 or £1200

UNISON immediately sought permission in High Court to bring judicial review proceedings but was unsuccessful; claim was “premature”

The number of claims began to drop

91% drop in sex discrimination

claims

80% drop in all claims

26 July 2017 – ET fees abolished


Supreme Court rules fees are “unlawful” under domestic and EU law

The system is indirectly discriminatory

Women, for example, are disproportionately affected

Fees block the common law right of access to justice (goes back to the Magna Carta)

Fees Order 2013 quashed

What is happening to the last four years of claims?

”

“

Dave Prentis, UNISON General Secretary


The Government has been acting unlawfully and has been proved wrong – not just on simple economics but on constitutional law and basic fairness too.

Government took immediate action to remove requirement to pay fees

Claims are, once again, free

Government confirmed it will refund anyone who has paid a fee. Pilot scheme started in October

Not just claim fees - includes fees for judicial mediation etc


ET claims (and so Early Conciliation applications) are likely to increase

Claims from women and young people may see the highest increase

This was already successfully argued in one case (Dhami v Tesco Stores). This may be the start of further claims being reintroduced.


Review potential claims/dismissals/employee matters for the last 4 years

Consider ‘time limits’ on any reissued claims: • Discrimination claims – “just and equitable” • Unfair dismissal claims – “reasonably practicable”

Review existing support for dealing with a possible increase in claims

Practical Application

2 Matthew Taylor: Modern

Employment Practices Review

Big changes for employment status?

Modern Employment Practices

In Autumn 2016, Prime Minister Theresa May asked Matthew Taylor, a former Labour Party adviser, to carry out a review into “modern employment” and the “modern problem with job security”

Influenced by employee stories of exploitation, for example, “Victorian workhouse” conditions at Sports Direct etc and gig economy cases including Uber


The Context

Sport Direct uses zero hours contracts and agency workers. Workers complained that they were often provided with no work, or shifts were cancelled at very short notice

Two Uber taxi drivers made a successful ET claim that their employment status was wrongly classified by Uber. ET found they were workers, not self-employed as their contract stated

Several other “gig economy” employment status claims have been made; all with the same result as the Uber case

The British Way should be directed towards “good work”


Seven steps towards fair and decent work

The law must work for employers and employees

People should be able to attain stronger work prospects

1

2

3

Platform based work is welcomed 4

Responsible corporate governance will achieve ‘better work’ 5

More proactive approach to workplace wellbeing 6

Sectoral strategies towards NMW compliance 7


Specific proposals: Employment status

Keep the three current statuses but rename “workers” as “dependent contractors” and give them a right to receive statement of main terms

Introduce a clearer outline of the employment status tests setting out the key principles in primary legislation and using secondary legislation/guidance to provide more detail

Create a fast track preliminary hearing to determine employment status in claims which depend on status


Specific proposals: Employment status

Employers to carry the burden of proof in status claims so they must prove the individual is not entitled to the relevant employment rights

Introduce aggravated breach penalties for employers who have already lost a status case but have ignored it


Specific proposals: Employment rights

The Government should ask the Low Pay Commission to consider introducing a higher National Minimum Wage rate for zero hours workers

Increase the gap in service required to break continuity from one week to one month

Give agency workers more information about their pay and who is responsible for paying them


Specific proposals: Employment rights

Introduce a new right for agency workers to request a direct contract with the hirer after 12 months on assignment. The hirer should be obliged to consider the request in a reasonable manner

Give zero hours workers a right to request a guaranteed hours contract after 12 months.



Review any use of zero hours contracts and agency workers

Would a direct contract be workable? Why not hire directly?

Review self-employed contracts. Are the individuals truly self-employed according to recent gig economy cases?

Watch out for the EAT decision in Uber v Aslam & Farrar

3 Gender Pay Gap Reporting

Not just the BBC’s problem

Gender Pay Gap Reporting

What data must be reported on?

• Mean and median gap in hourly pay

• Mean and median gap in bonuses

• The proportion of men and women

receiving a bonus

• The proportion of men and women in each quartile of pay distribution

250 or more employees

Snapshot date: 5th April 2017 (private sector); 31st March 2017 (public sector)

Must report by 4th April 2018 (private sector); 30th March 2018 (public sector)

Publish results on own website and upload to Government portal



If you fall into the scope of gender pay gap reporting – make sure you report by 4th April 2018 (or 30th March 2018 for public sector)

It is not a one-off requirement; the next snapshot date is 5th April 2018 (31st March 2018 for public sector)

Where gaps are identified, analyse the reason. Is there a legitimate reason e.g. male employees tend to have higher qualifications than female so will earn more? Even so, look at any potential blockers to advancement of female employees

4 Equal Pay

Not just the public sector

Equal Pay

Brierley & others v Asda Stores Ltd

10,000 Asda employees, backed by GMB, involved in an equal pay claim under the Equality Act 2010

Female and male in-store employees are paid less than male distribution centre workers

They argue that their work is traditionally seen as “women’s work” and distribution centre work is “men’s work”

Asda attempted to defend the claim by asserting the distribution centre workers did not represent a valid comparator for the store workers

Equal Pay

Brierley & others v Asda Stores Ltd

Employment Appeal Tribunal decided the store staff could compare themselves with the distribution centre staff and so claim can proceed

Asda likely to appeal this preliminary issue to the Court of Appeal so a hearing on the substance of the case will take 12-18 months

Asda employees’ legal representative also dealing with a similar case against Sainsbury’s

Glasgow City Council employees were successful in a similar claim this year

Equal Pay


Combination of Gender Pay Gap Reporting and the press coverage of equal pay claims means HR departments may see an increase in queries of pay parity

First, assess if roles can be compared – are they “like work”; work of equal value or work rated as equivalent in a job evaluation study?

If so, what is the reason for the difference?

5 Employee Monitoring

Interaction with human rights

The Question

Can employers read employee’s personal emails?

Employee Monitoring

The Answer

Yes, but…

Employee Monitoring

Employee Monitoring

Barbulescu v Romania

An employer in Romania asked an employee, Barbulescu, to set up a Yahoo Messenger account from which to contact clients. He was told not to send personal emails from it

The employer found personal emails had been sent from the account and questioned Barbulescu. He denied it so the employer produced a transcript of the emails. He was dismissed

Barbulescu claimed his employer had breached his human right to privacy by reading his personal emails – Article 8 Human Rights Act 1998

Employee Monitoring

Barbulescu v Romania

Romanian Court: Right to privacy was not breached; employer had acted reasonably

European Court of Human Rights: Right to privacy was not breached

Grand Chamber of the European Court of Human Rights: Right to privacy was breached

Grand Chamber’s reasoning:

Employee Monitoring

Barbulescu v Romania – Grand Chamber

the national courts had not examined the scope of the monitoring or whether the employer’s aim could have been achieved by less intrusive methods

on the evidence provided, it could not be concluded that Barbulescu had been informed in advance of the extent and nature of the employer’s monitoring or the possibility that the employer might have access to the actual contents of his messages

Employee Monitoring

Barbulescu v Romania – Grand Chamber

the national courts had not carried out sufficient assessment of whether there had been legitimate reasons to justify the monitoring

the seriousness of the consequences of the monitoring i.e. dismissal had not been considered; and

the national courts had not established at which point the content had been accessed

Employee Monitoring


Review monitoring policies to ensure employees are clear monitoring takes place

Consider your legitimate aim for monitoring – ensuring employee is not abusing systems likely to be sufficient

Consider where the line should be drawn – seeing that an email has been sent to a non-work address is enough to trigger the need to speak to the employee. Do you really need to read the email?

6 Calculating Holiday Pay

The continuing case law saga

Dudley Metropolitan Borough Council v Willets

– voluntary overtime

Calculating Holiday Pay

Three recent relevant cases:

British Gas Trading Ltd v Lock

– commission payments

Fulton v Bear Scotland Ltd (No. 2)

– time limits for back pay

liability

1 2 3


Voluntary overtime

Dudley Metropolitan Borough Council v Willets

56 roadside workers had set contractual hours

Could decide to do on-call overtime at their “whim” and receive a stand-by allowance and call-out payments

Claimed that holiday pay should include voluntary overtime, standby and call out payments and mileage allowance for work-related travel


Voluntary overtime

Employment Tribunal held these payments must be included

Employment Appeal Tribunal agreed with ET

Holiday pay should relate to “normal remuneration”

“Normal” means paid over a sufficient period of time on a regular or recurring basis

The payments were neither “exceptional” or “unusual”


Commission payments

British Gas Trading Ltd v Lock

ECJ ruled holiday pay should include an element representing commission payments

Employee had normal working hours but earned significant levels of commission and was paid basic pay plus any commission which fell to be paid when on leave

ET, EAT, Court of Appeal applied ECJ ruling consistently with effect that wording should be added to Working Time Regulations 1998


Commission payments

When a worker with normal working hours earns commission, he is deemed to have remuneration which “does vary with the amount of work done” and so holiday pay is calculated according to s. 221 ERA 1996

12 average calculation required

Affects “individual results based commission”

Supreme Court refused British Gas Trading Ltd leave to appeal


Back Pay Liability

Fulton v Bear Scotland Ltd (No. 2)

Original case (No. 1) dealt with the inclusion of non-guaranteed overtime in holiday pay – EAT held must be included

Also held that back pay liability ceases where there is a gap of three months or more between holidays

This claim (No. 2) dealt solely with calculation of back pay liability

Fulton claimed the decision on the “three month gap” was not part of the binding judgement in No. 1 and should be viewed only as persuasive


Back Pay Liability

EAT disagreed

Application of “three month gap” principle is binding and will break the series of deductions

May be appealed to Court of Appeal – wait and see

17,000 holiday pay claims were stayed pending this judgment – likely to be lifted?



Willets and Lock only apply to 4 weeks’ leave under Working Time Directive. Remaining 1.6 weeks (and any contractual excess) can be paid at basic rate

Willets – have to make judgment call on what is “regular”

Lock – Will 12 weeks always be an appropriate reference period for averaging pay?

Probably not for commission structures which pay out on a less regular basis - likely to be point for further litigation

7 Whistleblowing: What Is In

the “Public Interest”?

Whistleblowing: What Is In The “Public Interest”

Chesterton Global Ltd v Nurmohamed

Nurmohamed (Sales Director) was dismissed after making protected disclosure to other Directors about manipulation of accounting figures resulting in lower commission payments

Affected approx. 100 managers including himself

ET held ‘in the public interest’ - disclosure does not have to be in the interests of the entirety of the public – just a section

EAT dismissed Chesteron’s appeal

Held that no determination needs to be made by ET


Chesterton Global Ltd v Nurmohamed

Worker must simply reasonably believe disclosure is in public interest

Court of Appeal dismissed Chesterton’s further appeal

Held no absolute rule as to public interest test

ET must ask itself whether worker had reasonable belief but not reasons for it

The following points are a useful tool - amount of people affected, nature of the interest affected and the extent to which they are affected, nature of wrongdoing; identity of alleged wrongdoer



Appears to have limited the intention of the Enterprise and Regulatory Reform Act 2013 which attempted to restrict protected disclosure to those in the public interest

Every case to be assessed on its merits

Wrongdoing does not have to be on a national scale

Don’t assume public interest test will exclude wrongdoing relating to a group of workers

Consider Court of Appeal’s guidance on important factors

2 What to look out for in 2018

and beyond

2018 and beyond - agenda

General Data Protection Regulation

Taxation of termination payments

Caste discrimination

1

2

3

Bereavement leave for parents 4

Extension of shared parental leave 5

Entitlements for parents of premature babies 6

Dress code guidance 7


Implementation date: 25th May 2018

Via the new Data Protection Bill to replace the current DPA 1998

Wholesale change to the way organisations think about data security

Goes further than just HR but managing employee data is a vital aspect


Data subject’s rights under GDPR

The right to be informed

The right of access

The right to rectification/erasure

The right to restrict processing

The right to data portability

The right to object

Rights in relation to automated decision making and profiling

Automated decision making - online recruitment

General Data Protection Regulation – Automated decision making

Main areas for HR

Will affect the use of filters which may lead to online job applications being disregarded before they are considered by a human being

Explicit consent must be gained for use of automation

Candidates should be informed of the filter and be allowed to opt out on individual basis

Employee consent

General Data Protection Regulation – Employee Consent

Main areas for HR

Employees must give consent to the employer processing their data freely, specifically and when informed

Consent must also be unambiguous and affirmative

Must be a separate document (not a clause in Employee Handbook)

Employees must give able to withdraw consent easily

Subject access request

General Data Protection Regulation – subject access request

Main areas for HR

Data must be provided “without delay” and at the latest within one month (can be extended to two months if requests are complex or numerous)

Data must be provided free of charge (“reasonable fee” can be levied when request is “manifestly unfounded or excessive” or where further copies of the same information are requested)

Alternatively, request can be refused if “manifestly unfounded or excessive”

Data Protection Officer

Employers will be required to appoint a Data Protection Officer if:

General Data Protection Regulation – Data Protection Officer

Main areas for HR

a public authority (except for courts acting in their judicial capacity)

it carries out large scale systematic monitoring of individuals (for example, online behaviour tracking); or

it carries out large scale processing of special categories of data or data relating to criminal convictions and offences

General Data Protection Regulation – Data Protection Officer

Main areas for HR

Duties will be to inform and advise on laws, monitor compliance and be point of contact for supervisory authorities and data subjects

Can be an existing member of staff whose duties lend themselves to the new role or can be contracted out externally

Employers who are not required to have DPO may still decide to have one – onus of GDPR is on accountability

Breaches and fines

General Data Protection Regulation – Breaches and fines

Main areas for HR

Data security breaches where it is likely to result in a risk to the rights and freedoms of individuals will need to be reported to supervisory authority within 72 hours

Those directly affected will need to be notified if there is a ‘high risk’ to the rights and freedoms of individuals (threshold for notifying individuals is higher)

Breaches can lead to a fine of up to €20million or 4% of group worldwide turnover

Assess what personal data you hold;

General Data Protection Regulation – Action

Main areas for HR

Review policies and procedures for areas of change e.g. privacy notices, documentation around subject access requests

Reconsider the operation of online recruitment

Wait for finalised new DPA and guidance from Information Commissioner’s office (12 steps)

Do you need a Data Protection Officer?

General Data Protection Regulation – 12 steps to take now

How to prepare: ICO

Awareness

Information you hold

Lawful basis for processing

Consent

Privacy notices

Individuals’ rights

Data protection by design and DPIAs

Data breaches

Data Protection Officers

Logging

Sensitive processing

International



Review your subject access request procedures and related documentation. Remove references to standard £10 fee

Reconsider your position on consent – will it constitute freely given consent?

Do you need to appoint a Data Protection Officer?

What new documentation will you need? Breach notification policy?

Review current data protection policy

Taxation of Termination Payments

Implementation date: 6th April 2018

Via the Finance Acts (First and Second)

Non-contractual payments in lieu of notice will be taxable (to align with treatment of contractual PILON)

Termination payments in excess of £30,000 will attract employer’s National Insurance Contributions

Taxation of termination payments


Consider the extra cost to termination payments e.g. settlement agreements, when negotiating a settlement figure. Can you absorb the cost by agreeing a lower settlement sum?

Inform payroll departments of the need to pay tax on non-contractual PILONs

Caste Discrimination

Not specifically covered under the Equality Act 2010 so individuals not automatically protected

Caste is a form of class system traditionally associated with the culture of the Indian sub-continent

However, the Employment Appeal Tribunal, in Tirkey v Chandok, found that caste was an aspect of race

To provide specific protection, Government consulted on: • Amending the Equality Act so that

“race” refers specifically to caste; or • Continuing to rely on current case law

Any change is expected to take place during 2018.

Caste discrimination


Review equality policies to include up to date terminology

Make relevant employees e.g. recruitment department and managers aware of the extra protection and provide training on implementation of equality policies

Protection extends to perceptive and associative discrimination too – do not allow assumptions to be made which may inform behaviour

Bereavement leave for parents

Currently no statutory structure for bereavement leave

The right to time off for dependants covers time off to make arrangements in the event a dependant dies but does not give a right to time off to grieve

Parental Bereavement (Pay and Leave) Bill introduced in July 2017

Bill had its second reading on 20th October

Will apply to parents with children under the age of 18

Will be introduced “by 2020”

Will give parents a right to two weeks’ leave if their child dies. Leave will be paid if parent has 26 week’s service

Bereavement leave for parents


Review your current bereavement or compassionate leave policies for compliance with the future minimum requirements

If you do not already have a policy, take steps to introduce one when necessary so that employees are aware of their rights

Extension of shared parental leave

Shared parental leave was introduced for parents of children born/adopted on or after 5th April 2015

Allows parents to decide who will take leave and when instead of sticking to the traditional maternity/adoption and paternity structure

Currently, only parents who meet certain criteria can share leave

In late 2015, the Government announced proposals to allow working grandparents to share leave and pay to further increase choice and flexibility

Will particularly help single parents who cannot currently share leave

If this proposal is taken forward, it is likely to be implemented during 2018

Extension of shared parental leave


Look over your current shared parental leave policies and include reference to grandparents

Review your current communication to employees taking maternity leave for any mention of the right to take shared parental leave and ensure reference to grandparents

Amend your current standard documentation e.g. notice of entitlement etc to allow for a grandparent’s details to be provided rather than “partner”

Entitlements for parents of premature babies

A Private Member’s Bill (Maternity and Paternity Leave (Premature Birth) Bill) and campaigns by premature baby groups called for change to entitlements for parents

Recommended extending maternity leave to enable more time for bonding which is lost through time in hospital when a baby is born prematurely or full-term but is sick

Acas has produced guidance based on sensitive communication, flexibility around paternity leave entitlements and the return to work

Cannot rule out legal change in this area but length of maternity leave not likely to be increased; UK already has one of the best statutory schemes in the UK

Parents of premature babies


Make all managers aware of the new guidance. Instil in them the need for appropriate and sensitive communication

Make sure you are aware of all family friendly rights and how these may assist a parent in this situation e.g. parental leave, informal flexible working agreements etc

Dress code guidance

An agency worker, Nicola Thorp, started a petition after being sent home from her work assignment for not wearing high heeled shoes

The company’s dress code very prescriptive (see next slide)

Thorp claimed the dress code was discriminatory towards women

Backed by Women and Equalities Committee

Government refused to amend the law, saying discriminatory dress codes already unlawful under Equality Act 2010

But Government will produce guidance on dress codes to increase employer awareness of what they can/cannot contain

• Heel height normally a minimum of 2 inches and maximum of 4 inches, unless otherwise agreed by the client company

• Make-up worn at all times and regularly re-applied, with a minimum of: light blusher, lipstick or tinted gloss, mascara, eye shadow, light foundation/powder. Nail varnish only from the colour palette below.

• Tights of no more than 15/20 denier to be worn at all times on duty. Black or brown may be worn for darker skin tones and natural/tan for lighter skin tones.

• Regularly maintained hair colour (if an individual colours her hair) with no visible roots.

Dress code guidance

Dress code guidance


Look at your dress code, whether written or implied. Does it place requirements on female employees which could be deemed as discriminatory?

Rules can be different for men and women provided they comply with normal conventions of society e.g. shirt and tie for men but not women. But does it go too far? If so, change it. Dress codes can already be discriminatory, we do not need to wait for new laws to confirm this.

Also consider transgender employees

3 How Brexit may shape

employment law

Brexit – What do we know?

29th March 2019

UK continues to be bound by EU law until the Exit including new laws e.g. GDPR

No “cliff-edge” situation

After Brexit, all UK laws derived from EU will stay – for now

New immigration rules will apply to EU nationals

Since becoming Prime Minister I have made it clear that I will use the UK’s departure from

the EU to strengthen and enhance workers’ rights”

Theresa May, May 2017

“

Brexit – Laws derived from EU

Trade Union and Labour Relations (Consolidation) Act 1992 (for collective redundancy rights)

Working Time Regulations 1998

Human Rights Act 1998

Data Protection Act 1998

Maternity and Parental Leave Regulations 1999

Brexit – Laws derived from EU

Fixed-Term Workers (Prevention of Less Favourable Treatment) Regulations 2000

Part-Time Employees (Prevention of Less Favourable Treatment) Regulations 2000

Transfer of Undertakings (Protection of Employment) Regulations 2006

Equality Act 2010

Agency Workers Regulations 2010

Brexit – Which areas are not affected?

Unfair dismissal National Minimum/Living Wage

Pension auto-enrolment Flexible working

Shared parental leave Gender pay gap reporting

Brexit – Laws most likely to be reviewed

Agency Workers Regulations 2010 – extra burdens put on employers who engage agency workers have never been popular

Compensation under Equality Act 2010 – introduction of a cap on maximum award

Working Time Regulations 1998 – removal of the case law principles on accrual of annual leave during sickness and inclusion of extra elements (e.g. commission) in holiday pay

TUPE – removal of prohibition on harmonisation?

Brexit – Immigration procedures

Nationals from the EU may currently work in the UK without the need for authorisation

Nationals from outside of the EU must enter the UK via the Points Based System

Leaving the EU will mean that EU nationals will become subject to immigration restrictions. Leaked Government document says: “Free movement will end in its current form”

What are the current proposals for EU nationals currently in the UK?

Brexit – EU nationals currently in the UK

A “cut off” date will be named

EU nationals with 5 years’ residence in the UK at that date will be entitled to apply for “settled status” meaning they will be treated as if they were UK citizens for healthcare, education, benefits etc

Those with less than 5 years’ residence at the cut-off date will be entitled to apply for temporary residence until they reach 5 years and can then apply for settled status

Process for acquiring settled status likely to be in place from mid-2018

Brexit – EU nationals entering UK after Brexit

EU nationals entering after the cut-off date will be given a 2 year “grace period” during which to obtain authorisation to remain in the UK

Those without the authorisation will not be legally entitled to work in the UK

There are no indications yet as to what form the authorisation will take

Leaked Government paper suggested low skilled workers would obtain maximum 2 years’ residency whereas higher skilled would be able to stay for up to 5 years

Brexit – Application of ECJ rulings

UK courts will determine cases after Brexit on laws derived from EU by reference to ECJ case law as it existed on the date UK leaves EU

ECJ rulings will be treated as if they were made by the Supreme Court

This means that Supreme Court would be able to depart from current ECJ rulings

Question over application in the UK of future ECJ rulings. Likely that UK Courts will not be bound by ECJ, but can take ruling “into account”

Any Questions?

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employment law debrief: understanding the new landscape...14:30 – 15:15 recent developments in...

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