Employment law update< January 2018, Nottingham
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Transcript of Employment law update< January 2018, Nottingham
Annual employment law updateJanuary 2018, Nottingham
Today’s sessionReview of the last year:1. Tribunal fees and refund scheme2. Gig economy and employment status3. Holiday pay update4. Case law update – vicarious liability and “a week’s
pay”5. Discrimination case update6. Sexual Harassment7. Hidden disabilities
Today’s session
Looking forward:1. Gender pay gap reporting2. Taxation Changes3. Data protection4. Brexit
1. Tribunal fees and refundscheme
Tribunal fees and refund scheme
- Tribunal fees ruled unlawful from theoutset by Supreme Court
- Refund scheme now open- Govt will repay £27 million in fees
previously paid- Fee re-introduction?
What next for employers?
- Opening of the floodgates?- Reimbursement of fees made by
employers- Tribunals buckling- Risk of previous claims being re-opened- Watch this space
2. Gig economy and Employmentstatus
Uber (again…)
- Last year we covered the ET decision in Aslam &Farrar v Uber
- The EAT dismissed Uber’s appeal in November 2017
- Uber will appeal to the Court of Appeal
- Decision fact sensitive, but…
Deliveroo’s turn
Independent Workers Union of Great Britain vRooFoods Ltd (t/a Deliveroo) (CAC)- CAC held that riders were NOT workers- Bucks trend of gig economy cases- Major difference between Deliveroo and Uber is
right to substitution was genuine and used inpractice
- Not strictly binding
Taylor ReviewThe Taylor Review report was published in July 2017and recommended:
– Renaming “worker” to “dependent contractor” andre-clarifying distinctions
– Additional rights for dependent contractors such aswritten statement of terms
– Expedited hearings for determining status– Right to guaranteed hours after 12 months on a ZHC– “Rolled up” holiday pay for dependent contractors– But…
BUT….
- The Government announced recently that reformshave been put on hold until 2019
- For now, watch this space
3. Holiday Pay Update
Recap
- The EU guarantees workers a minimum of 4weeks’ paid leave
- British government goes further and guaranteesa total of 5.6 weeks
- Divergence between EU and domestic law –based on “a week’s pay” or “normalremuneration”?
Recap
• Last year we covered…– British Gas Trading Ltd v Lock (CA) –
commission ought to have been factored intoholiday pay for Mr Lock
– Fulton v Bear Scotland (No. 1) (EAT) – non-guaranteed compulsory overtime must beaccounted for
Developments
Dudley MBC v Willetts (July 2017)– EAT held that voluntary overtime pay, out-of-hours
standby payments and call-out payments should beincluded in holiday pay IF they are part of “normalremuneration”
– But what does “normal” mean?– This case shows danger of underpaying holiday – 56
potential claims
Back pay?- Claim must be made within 3 months of last
deduction going back a total of two years. But…
King v Sash Window Workshop Ltd (ECJ)– Commission only salesman took no paid holiday for
13 years– ECJ held that under EU law, he is entitled to a back
payment in lieu for the entire period– Not directly applicable to underpayment – argument
yet to be raised
So what?
- Do you have a lot of employees who:– Undertake voluntary overtime; or– Work on results based commission?
- Consider reviewing working arrangements andreviewing holiday pay calculation formulae
- Although each case turns on its own facts, compareyour situation with that in the cases
4. Case update
Vicarious liability
Various claimants v Wm Morrisons Supermarket PLC(HC)- Mr S published personal details of 100,000
employees on internet – sentenced to 8 years inprison
- High Court held that employers can be vicariouslyliable for employee breaches
“A week’s pay”
University of Sunderland v Drossou (EAT)- “A week’s pay” under ERA 1996 includes employer
pension contributions- Impact on compensation under TUPE and unfair
dismissal compensatory awards- Defined benefit schemes?
5. Discrimination case update
Developments in religiousdiscriminationAchbita v G4S Secure Solutions NV (ECJ)- Belgium company dress code banned wearing of
visible signs of religion or belief- Ms A was dismissed for refusing to remove Muslim
head scarf
Questions
Did the ECJ find that Ms Achbita had been directlydiscriminated against on the basis of her religion?
• Yes
• No
Developments in religiousdiscriminationAchbita v G4S Secure Solutions NV (ECJ)- ECJ held NOT direct discrimination, but could be
indirect discrimination- No particular religion or belief treated differently- Ban can be justified providing it is a proportionate
means of meeting a legitimate aim
Developments in religiousdiscriminationBougnaoui v Micropole SA (ECJ)- Decision released on same day as Achbita- Customer complained about Ms B’s head scarf- M asked Ms B to remove. Dismissed her when she
refused
Questions
Did the ECJ find that Ms Bougnaoui had been directlydiscriminated against on the basis of her religion?
• Yes
• No
Developments in religiousdiscrimination
Bougnaoui v Micropole SA (ECJ)- ECJ held direct discrimination and no occupational
requirement- Difference between Bougnaoui and Achbita?
Developments in disabilitydiscriminationPeninsula Business Service Ltd v Baker (EAT)- Mr B claimed his dyslexia constituted a disability
but did not prove it- P subjected Mr B to surveillance- Mr B claimed harassment on basis that decision to
conduct surveillance was linked to his dyslexia- EAT held NO protection from harassment for
alleged disability
Associative/perceiveddiscrimination summaryType of claim Protection from DD, ID and
harassment under EqA?
A has a protected characteristic (“PC”) Yes
A does not have a PC, but is closelyassociated with C who does
Yes
B knows that A does not have a PC Yes
B wrongly perceives A to have a PC Yes
A alleges to have a PC No
6. Sexual harassment
How prevalent is it?
0 5 10 15 20 25 30 35 40
Displays of pornography
Sexual comments about women/another woman
Unwated messages of sexual nature
Unwelcome sexual advances
Sexual assault
Unwanted touching
Unwelcome sexual jokes
Sexual comments about body and/or clothing
Serious sexual assault/rape
%
The lawSection 26(2) – Sexual harassment
A engages in unwanted conduct of a sexual nature
which has the purpose or effect of either violating
B’s dignity or creating an intimidating, hostile,
degrading, humiliating or offensive environment for
B
The law
Section 26(3) – Less favourable treatment forrejecting or submitting to harassment
Sexual harassment + less favourable treatment due
to B’s rejection or submission to the conduct = s26(3)
claim
The law
Are employers liable for the harassment of theiremployees?- General rule is YES, but subject to some
exceptions:- In the “course of employment”?- “Reasonable steps” defence- Liability for third-party harassment?
What can employers do?
- Comprehensive anti-harassment policy
- Follow a stringent investigation procedure
- Regular compulsory training for all staff
- Policy should be re-iterated before harassment“hot-spots”
7. Hidden disabilities
What do we mean by “hiddendisability”?- Not always self-evident
- Can include anything from mental healthdifficulties to autism or Crohn’s disease
- According to WHO, how many people live with adisability worldwide?
Questions
According to WHO, how many people live with a disabilityworldwide?
• 5 million• 50 million• 125 million• 600 million• 1 billion
Questions
What percentage of disabled people DO NOTneed a wheelchair or another aid that visuallysignals their impairment?
• 74%• 87%
• 17%• 31%• 56%
Impact
Thriving at work report (October 2017):- 300,000 people with long term mental health
problems lose jobs each year- 15% of people at work exhibit symptoms of existing
mental health condition- Poor mental health costs employers between £33
and £42 BILLION per year
The law on reasonableadjustments- Duty only arises where employee (A) disabled for
EqA purposes- Ignorance not always an excuse- Is A placed at substantial disadvantage compared
to non-disabled person?- What can constitute a “reasonable” adjustment?
Recent case example
Government Legal Service v Brookes (EAT)- Job applicant with Asperger’s required to sit
multiple choice test- GLS refused to adjust test- EAT upheld indirect discrimination and failure to
make reasonable adjustment claims
Practical tips
- Break the culture of silence
- Give employees/applicants a chance to disclose
- Err on the side of caution
- Provide employees with good working conditions
Looking forward…
1. Gender pay gap reporting
Gender pay gap reporting
Private sector employers mustpublish their first reports by
4 April 2018
Gender pay gap reporting
Who does it cover?- Private or voluntary sector employers with 250 or
more employees on 5 April each year- Reporting obligations only for “relevant
employees”Where must it be published?- Own website- By Government
Gender pay gap reporting
What should you do?- Are you a relevant employer?- Identify any uncertain areas- Which pay needs including?- Calculate the gap before the deadline- Action plan?- If in doubt, take advice
Non-compliance
EHRC Adversepublicity
Reputationaldamage Unlawful
2. Taxation changes
• From 6 April 2018:
– ALL PILONS are taxable and subject to class 1 NICs
• From 6 April 2019:
– Termination payments above £30,000 now subject toemployer NICs rather than just income tax
3. A brief look at GDPR- New regime for data protection coming into force
25 May 2018- Significant enhancements to protection- Examples of some of the changes:
– Tougher sanctions – up to 4% annual worldwideturnover
– Higher bar for lawful processing– One month to comply with SARs rather than 40 days
4. Brexit
Where are we now?
- “Phase 1” negotiations complete
- EU nationals to apply for settled/temporary status:
Settled Status applications
- Digital, streamlined and user friendly
- Cost of a passport
- Minimal supporting documentary evidence
- Decision in 2 weeks
The future?- Biggest annual reduction in net migration
- Mass exodus of EEA workers
- Government committed to reducing migration tothe tens of thousands
- Home Office leaked paper – new work permitsystem?
What should employers do now?
- Audit
- Communicate
- Review recruitment and trainingstrategies
What should employers do now?
- Get a Tier 2 Sponsor Licence?
- Update Right to work checks
- Lobby, Lobby, Lobby
Speak to us
Emily [email protected]+44 (0)115 976 6501
Paul [email protected]+44 (0)115 976 6076
Helen [email protected]+44 (0)115 908 4897
Connect with us on LinkedIn –https://www.linkedin.com/company/browne-jacobson-llp where you’ll find useful tools andinformation that will be of interest to you
All information correct at time of production.
The information and opinions expressed within thisdocument are no substitute for full legal advice. It is forguidance only and illustrates the law as at the publisheddate. If in doubt, please telephone us on 0370 2706000.
© Browne Jacobson LLP 2018 – The informationcontained within this document is and shall remain theproperty of Browne Jacobson. This document may notbe reproduced without the prior consent of BrowneJacobson.