- Health & Safety: UK government in breach of EU law to protect workers, not just employees
- Tribunals: No apparent bias or unfairness where lay member sat on two related tribunals
- Indirect Discrimination: The ‘costs-plus’ rule justification
- Contract: Firm could rely on manager’s repudiatory conduct to justify summary termination despite itself being in breach of contract
- Indirect Discrimination: Permission for judicial review granted in SEISS indirect sex discrimination case
- COVID-19: New government guidance on using volunteers during the pandemic
- COVID-19: ONS finds employers prioritise highest paid furloughed workers for pay top up
- COVID-19: Advice for employers on how to manage employees suffering from ‘Long Covid’
- Gender Pay Gap: ONS data reveals gender pay gap reduction to 7.4%
- Data Protection: ICO fines Marriott International £18.4m and British Airways £20m
Health & Safety: UK government in breach of EU law to protect workers, not just employees
In The Independent Workers’ Union of Great Britain v The Secretary of State for Work & Pensions and others  EWHC 3050 (Admin) the Independent Workers’ Union of Great Britain (IWUGB) brought an application for judicial review on behalf of its members, against the UK government. The union, whose membership largely comprises low-paid, migrant workers and workers in the “gig economy”, brought this case because many of these workers are taxi, private hire, bus and coach drivers, who are at increased risk due to Covid-19, and the case highlights this.
The IWUGB’s claim sought declarations that the UK government failed properly to transpose into domestic law two EU Directives (Directive 89/391/EC on the introduction of measures to encourage improvements in the health and safety of workers at work (aka “the Framework Directive”) and another made under powers conferred by the Framework Directive – Directive 89/656/EC on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (aka “the PPE Directive”)) on the basis that the UK legislation, when transposed, protected only ’employees’ rather than the broader category of ‘workers’, thus leaving workers without the protection the EU law guarantees.
The Framework Directive sets out to protect employees and workers and is the source of the protections in s.44 of the Employment Rights Act 1996, for employees who leave their workplace or take action in circumstances of serious and imminent danger. The PPE Directive is the source of the rules in Regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992 that an employer must provide PPE if the risks of an activity cannot otherwise be avoided. The gap has existed in law since 1992 but it was not until the Covid pandemic that the risks it produced had been significantly highlighted.
The High Court considered other Directives and cases, and concluded that the definition of worker for the purposes of these Directives should be the same as used in other Directives, such as those on free movement, equal pay, and working time. Therefore, the legislation did not give the same level of protection to workers as employees, and the court granted a declaration to that effect. This is a significant judgment. The government now has to choose whether to appeal this decision, or if not, legislation will be required to extend the scope of the protections to include the broader category of workers. A formal response from the government is due shortly.
Tribunals: No apparent bias or unfairness where lay member sat on two related tribunals
In Lyfar-Cisse v Brighton And Sussex University Hospitals NHS Trust  UKEAT 0100_19_2810 the EAT had to consider whether the fact that the same lay member sat concurrently on two separate tribunal panels considering claims which involved the same parties gave rise to apparent bias and thus unfairness? And, if so, had the Appellant waived the right to take the point?
The Claimant had brought two claims against her employer. One, for direct race discrimination on the grounds of race and victimisation was heard before EJ Bryant QC, and the other, brought a few months later for unfair dismissal, was heard before EJ Baron. Tribunal panels usually consist of an employment judge and two lay people, who are not legally qualified. One of the lay members (Ms Campbell) sat in both cases. In addition, an overlap arose because both tribunals were adjudicating upon issues which either referenced or related to the decision made by a Ms Cashman (chair of the disciplinary meeting).
In dismissing both appeals, the judge, Lord Fairley, clearly found little overlap, commenting that a “fair minded and informed observer…” would not have seen a real possibility of bias in the circumstances, but would have concluded that the tribunals were properly trying to determine the issues before them. Nothing that Ms Campbell learned about Ms Cashman’s decision in the first tribunal could have affected her decision making in the second.
Indirect Discrimination: The ‘costs-plus’ rule justification
In Heskett v Secretary of State for Justice  EWCA Civ 1487, a probation officer brought a claim against the MoJ for indirect age discrimination because the Ministry changed its pay structure resulting in employees taking a longer time to make their way up the pay scale. This meant, effectively, that Mr Heskett, over the long term, earnt less than his longer serving (and therefore typically older) colleagues. The MoJ had made this change in order to meet a cap on increases in public sector pay.
In Cross v British Airways  IRLR 423 it was held that cost grounds can properly be a factor for an employer objectively justifying indirect discrimination, if combined with other reasons. Cost considerations alone are not sufficient to justify a discriminatory provision, criterion or practice for indirect discrimination. This became known as the “costs-plus” rule, which was broadened in Woodcock v Cumbria Primary Care Trust  EWCA Civ 330 by focusing on the issue of how the employer’s “legitimate aim” is identified. The Claimant, Mr Heskett, argued in this case, however, that the MoJ’s aim to save costs could not amount to a legitimate aim, and therefore the discriminatory effect of the new pay structure was unjustifiable. The tribunal found that the pay progression policy was prima facie discriminatory, but that it was a proportionate means of achieving a legitimate aim and therefore justified, and the EAT agreed, so Mr Heskett appealed to the Court of Appeal.
After much consideration, the Court of Appeal found that cost alone is not sufficient to justify some action or rule which would otherwise amount to indirect discrimination on the grounds of age, but it can be a legitimate aim for the purpose of a justification defence if the employer uses it combined with something else such as the “need to reduce its expenditure, and specifically its staff costs, in order to balance its books” – Lord Justice Underhill at para.98. Mr Heskett’s appeal was therefore dismissed on all grounds. The decision established that the need to operate within a budget or balance the books should be treated as a legitimate aim that is more than just saving cost.
Contract: Firm could rely on manager’s repudiatory conduct to justify summary termination despite itself being in breach of contract
In Palmeri & Others v Charles Stanley and Co Ltd  EWHC 2934 (QB) the High Court has held that a firm was entitled to rely on a stockbroker’s repudiatory conduct to justify the summary termination of his contract, despite the firm itself being in repudiatory breach. Mr Palmeri was a self-employed investment manager contracted to Charles Stanley & Co Ltd, with a three-month notice period and no PILON clause (pay in lieu of notice). The firm decided to change its operating model to take a larger portion of Mr Palmeri’s revenues. This was resisted by Mr Palmeri. At a meeting on 21 April 2017, the firm offered him an ultimatum: sign the new terms there and then, or leave immediately with pay in lieu of notice. Mr Palmeri reacted furiously and verbally abused the managers present, as well as the firm generally. He then said that he would accept the new terms under protest, for the duration of his notice period. However, his abusive rhetoric escalated and the firm withdrew the offer of new terms and summarily terminated his contract.
Mr Palmeri issued a claim for breach of contract in relation to the summary termination. He also alleged that the failure to allow him the opportunity for an orderly transition of his clients’ business was a breach of the implied term of mutual trust and confidence. The firm sought to rely on Mr Palmeri’s repudiatory conduct at the meeting, as well as several serious regulatory compliance failures during his engagement, which were only discovered after termination.
The High Court found that the firm had had no contractual right to present Mr Palmeri with the ultimatum in April 2017, since it had no right to make a payment in lieu of notice. However, Mr Palmeri’s conduct as a whole, including his outburst at the meeting and the history of regulatory issues, amounted to serious misconduct and a breach of the implied duty of mutual trust and confidence, justifying summary termination. The fact that the firm had been poised to deny Mr Palmeri his notice period did not affect its entitlement to rely on the repudiatory conduct that ensued or was later discovered. The court therefore did not need to consider Mr Palmeri’s claim to an implied right to an “orderly transition” of business.
Indirect Discrimination: Permission for judicial review granted in SEISS indirect sex discrimination case
Pregnant Then Screwed, a charity that supports, promotes and protects the employment rights of pregnant women and mothers, announced on 6 November 2020 that it has been granted permission for judicial review against the Chancellor of the Exchequer.
The charity will argue that the Chancellor’s Self-Employment Income Support Scheme (SEISS), introduced in April 2020, indirectly discriminates against self-employed women who took maternity leave between 2016 and 2019. It argues that, because the SEISS does not account for the subsequent reduction in self-employed women’s average income, they are entitled to smaller grants than their peers. The charity has devised three grounds to its challenge:
- That the SEISS calculation clause violates Article 14 (the right to protection from discrimination) read in conjunction with Article 1 of Protocol No.1 (the right to property) of the European Convention on Human Rights.
- The SEISS calculation clause is indirectly discriminatory, breaching section 19 of the Equality Act 2010.
- The SEISS scheme does not comply with the public sector equality duty under section 149 of the Equality Act 2010.
The application for judicial review followed the charity’s decision to send a pre-action protocol letter to the Chancellor, whose legal team responded by correlating maternity leave to a sabbatical or any other type of leave. It is estimated that as many as 75,000 women may have been affected by the alleged discrimination.
COVID-19: New government guidance on using volunteers during the pandemic
On 13 November 2020, the Department for Digital, Culture, Media and Sport (DCMS) published new guidance for organisations and groups in England on how to safely and effectively involve volunteers in their work during the COVID-19 pandemic. The guidance, which reflects current lockdown restrictions:
- Encourages those who can volunteer from home to do so. It then says that people can volunteer outside their home (including within a workplace, unless it has been ordered to close) if they are unable to volunteer from home, don’t need to self-isolate, are not clinically extremely vulnerable, and follow social distancing or (if volunteering in a workplace) COVID-secure guidance.
While this also applies to those who are clinically vulnerable, including those aged 70 and over, the guidance warns that such volunteers may require additional support to follow social distancing rules and minimise contact with others, and should be especially careful. Clinically extremely vulnerable people are advised not to volunteer outside their home.
- Warns that no one should be compelled by their organisation or group to volunteer outside their home. Volunteering is a personal choice.
- Says that, while volunteering, people can meet in groups of any size from different households, indoors or outdoors, but must follow social distancing guidance and observe the three key behaviours (hand washing, wearing face coverings and giving space).
- Reminds employees furloughed through the Coronavirus Job Retention Scheme that they can, during the hours they are on furlough, volunteer for another employer or organisation, but that they are not permitted to volunteer for their own employer or an organisation linked to, or associated with, it. These rules have not changed, despite calls from the sector for the employees furloughed by charities to be allowed to perform voluntary work for them.
- Reminds those using volunteers of their duty of care to ensure, as far as reasonably practicable, that volunteers are not exposed to risks to their health and safety.
COVID-19: Advice for employers on how to manage employees suffering from ‘Long Covid’
With thousands of people still unwell months after contracting coronavirus, People Management asked HR experts, wellbeing specialists and employment lawyers how organisations can support employees suffering from the condition now termed ‘Long Covid’. The main advice is that the situation should be discussed openly with employees, who should be treated on a case-by-case basis as with any other medical condition, and use occupational health as a guide to accommodate adjustments. However, it is too soon to be labelling coronavirus as a disability.
COVID-19: ONS finds employers prioritise highest paid furloughed workers for pay top up
The Office for National Statistics (ONS) has revealed that employers prioritised paying full pay to top earners during the COVID-19 pandemic in contrast with the UK’s lowest paid workers who were five times more likely to be furloughed with reduced pay.
The data collected covered a range of demographic indicators; almost a quarter of 18 to 21 year olds were furloughed on reduced wages compared with only 9% of 40 to 59 year olds and 39% of hospitality workers were furloughed on reduced pay compared with 3% in professional jobs. It also found that there were 2,043,000 jobs where employees aged 16 or over were paid below the legal minimum in April 2020, more than four times the 409,000 jobs a year earlier.
Gender Pay Gap: ONS data reveals gender pay gap reduction to 7.4%
Figures published by the Office of National Statistics (ONS) have revealed that the UK’s gender pay gap, calculated using the median hourly earnings of full-time employees, has fallen to 7.4% from 9% in 2019. This means that, as of April 2020, female workers earned 92.6% of male employees’ hourly pay. This reduction was reflected across age groups, with the gender pay gap for full-time workers under-40 particularly low at “close to zero”. Interestingly, the most significant reduction in the gender pay gap occurred among managers, directors and senior officials, falling from 16.3% in 2019 to 9.9% in 2020. The ONS highlighted the fact that “this occupation group has the highest median pay of any occupation … and therefore has a strong impact on the gender pay gap” overall.
The Government Equalities Office and the Equalities and Human Rights Commission suspended gender pay gap reporting regulations back in March 2020 as a result of disruption caused by the COVID-19 pandemic. Although this data takes furloughed workers’ pay into account, the ONS warned that the impact of the pandemic may not be fully reflected.
Data Protection: ICO fines Marriott International £18.4m and British Airways £20m
The Information Commissioner’s Office (ICO) has issued a monetary penalty notice fining Marriott International Inc (Marriott) £18.4 million for breaching its data security obligations under the General Data Protection Regulation (GDPR), leaving about 339 million guest records worldwide exposed to a cyber-attack on Starwood Hotels and Resorts Worldwide Inc’s (Starwood) reservation database in 2014. Marriott acquired Starwood in 2016, but the exposure of customer data was only discovered in 2018, at which time Marriott notified the ICO and updated its systems.
The ICO traced the cyber-attack back to 2014, but the penalty only relates to the breach from 25 May 2018, when the GDPR became applicable. As the breach occurred before the UK left the EU, the ICO investigated this on behalf of all of the EU authorities as a lead supervisory authority under the GDPR.
The amount imposed is a significant reduction on the £99,200,96 million the ICO announced it intended to fine Marriott in July 2019. As part of the regulatory process, the ICO considered representations from Marriott, the steps Marriott took to mitigate the effects of the incident and the economic impact of COVID-19 on their business before setting a final penalty.
This fine illustrates the importance of carrying out thorough due diligence when making a corporate acquisition and, as part of this, to assess how personal data is protected. It follows hot on the heels of the ICO fining British Airways £20 million earlier this month for failing to protect the personal and financial details of more than 400,000 of its customers in a cyber-breach, the largest fine imposed to date for a breach of the GDPR. An ICO investigation found the airline was processing a significant amount of personal data without adequate security measures in place. This failure broke data protection law and, subsequently, BA was the subject of a cyber-attack during 2018, which it did not detect for more than two months. ICO investigators found BA ought to have identified weaknesses in its security and resolved them with security measures that were available at the time.
On 18 August 2020, Martin Bryant filed a representative class action in the High Court (Bryant v Marriott International Inc and others, case number QB-2020-002882). The claim for compensation is being brought on an opt-out basis by automatically including guests who made a reservation at one of the former Starwood hotels before 10 September 2018.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.
A briefing note to remind businesses to consider whether they need to pay the annual data protection fee, and how to go about doing this.
- Disability Discrimination: A perceived risk of future disability is discrimination
- Discrimination: Does contributory negligence affect amount of injury to feelings award?
- Disability Discrimination: Is reliance on Occupational Health reports sufficient to prevent constructive knowledge of a disability?
- Right to Privacy: Employer can rely on material produced under police investigation
- Trade Unions: One-off direct offer is not unlawful inducement
- Tribunal proceedings: Extensions of time where belief reasonable
- Holiday Pay: Under the Working Time Directive holiday pay must include regular voluntary overtime
- Sexual Harassment and Discrimination: WEC publishes report on use of NDAs in discrimination cases
- Health & Safety: Employers should support victims of domestic abuse
- Health & Safety: IES publishes report regarding support for epileptic workers
- Data Protection: One year on since implementation of GDPR and Data Protection Act 2018
- Parental Leave: UK ranks near bottom for family friendliness
Disability Discrimination: A perceived risk of future disability is discrimination
In Chief Constable of Norfolk v Coffey  EWCA Civ 1061 Lisa Coffey was a police officer in the Wiltshire Constabulary who suffered from a degree of hearing loss which had never caused her any problems in doing her job (‘day to day activities’) and which, everyone agreed, does not constitute a disability within the meaning of the Equality Act 2010. In 2013 she applied for a transfer to the Norfolk Constabulary, but it was refused because on a medical test her hearing fell, as the medical adviser put it, “just outside the standards for recruitment strictly speaking”. She brought a claim for disability discrimination against the Chief Constable of the Norfolk Constabulary because of a (perceived) disability. Section 13(1) of the Equality Act states: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Her claim was upheld by an Employment Tribunal but the Constabulary appealed. The EAT agreed with the tribunal.
Upholding the decisions of the previous tribunals, the Court of Appeal found that the Constabulary did unlawfully discriminate against Ms Coffey because of a perception of a risk of future inability to work in a particular role, as she was clearly carrying out her current front-line officer role without hindrance. It was this perception of a risk of future disability that was discriminatory and resulted in the recruiting officer giving her less favourable treatment. The appeal was dismissed.
Discrimination: Does contributory negligence affect amount of injury to feelings award?
The Law Reform (Contributory Negligence) Act 1945 (‘LRCNA’) basically allows an award for damages to be reduced proportionately where the claimant suffered the damage partly as a result of his/her own actions or those of someone else.It is possible for it to apply to some discrimination claims, but reduction of an award for contributory negligence would rarely, if ever, be justified because of the difficulties in applying the concept of “fault” to the victim of a discrimination claim and the fact that the discriminator may have acted without “fault” in the sense of the 1945 Act.
In First Greater Western Limited & Linley v Waiyego UKEAT/0056/18/RN the Claimant succeeded in bringing a claim for failure to make reasonable adjustments and a claim for disability discrimination, for which she was awarded £19,800 for injury to feelings in respect of the first claim and £8,800 for injury to feelings arising from the second claim. Both sides appealed.
On appeal, the Respondent claimed that the LRCNA could be applied to discrimination claims and that the tribunal failed to make any deduction to reflect the Claimant’s contributory negligence in failing to give the employer details of her previous cognitive behavioural therapist. The EAT held that the obiter dictum relied upon in Way v Crouch  ICR 1362 was in fact too broad and a contributory negligence argument in a discrimination claim may be more appropriately treated as an allegation of failure to mitigate loss. It further held that the tribunal had not erred in its assessment of the quantum of non-financial loss (psychiatric injury and injury to feelings) for disability discrimination. These awards were not flawed by misdirection in relation to causation of loss; nor were they perversely high or flawed by double counting.
As for the Claimant’s appeal, the EAT held that the tribunal had rightly rejected the Claimant’s invitation to impose a financial penalty on the First Respondent (First Greater Western Limited) under section 12A(1) of the Employment Rights Act 1996 for deliberate and repeated breaches of employment law. It was held that the tribunal had also rightly rejected the invitation of the Claimant to award aggravated damages.
Disability Discrimination: Is reliance on Occupational Health reports sufficient to prevent constructive knowledge of a disability?
In Kelly v Royal Mail Group Ltd UKEAT/0262/18/RN, Mr Kelly was a postman who had a poor attendance record generally, which had triggered the Royal Mail’s Attendance Policy on several occasions. Following two further periods of absence relating to surgery for Carpal Tunnel Syndrome the policy was triggered again, including the final AR3 stage of the policy, which allowed for a review of the whole of his attendance record. As a result the Royal Mail decided that it had lost confidence in Mr Kelly’s ability to maintain a satisfactory attendance record and accordingly dismissed him.
The tribunal held that, whilst dismissal was a harsh response, it was within the band of reasonable responses and therefore the dismissal was fair. It dismissed the allegation that this amounted to disability discrimination on the basis that Royal Mail did not know and could not reasonably be expected to know that Mr Kelly had a disability. Mr Kelly appealed on the grounds that it was perverse to conclude that it was fair to dismiss him for two absences for corrective surgery which he could not help, and for Royal Mail to rely upon earlier absences. Furthermore, it was argued that the tribunal erred in accepting that Royal Mail did not have constructive knowledge of disability because it just “rubber stamped” the Occupational Health report.
The EAT dismissed the appeal – the tribunal’s conclusion as to the fairness of the dismissal was not perverse because the policy expressly permitted earlier absences to be taken into account, and accordingly conduct in line with that policy is unlikely to be unfair. The policy applied to all absences, irrespective of fault or blame, and Royal Mail was entitled to look at the overall pattern of absence in determining whether there was a likelihood of satisfactory attendance in the future. As to disability discrimination, the EAT found Royal Mail had not simply rubber stamped the Occupational Health reports, but had actually given independent consideration to the question of disability (and arrived at the decision that carpal tunnel syndrome is not automatically a disability) though the reports themselves contained more than a bare assertion that the Claimant was not disabled. No other evidence had been supplied by Claimant or his representative, and there was nothing to suggest that the employer should seek further clarification as to whether the Claimant was disabled or not. Given all this, there was no error in the tribunal’s conclusion that Royal Mail did not have constructive knowledge of disability.
Right to Privacy: Employer can rely on material produced under police investigation
In Garamukanwa v United Kingdom  6 WLUK 109, Mr Garamukanwa and Ms Maclean worked for the same NHS hospital trust, and had had a relationship that had ended. Mr Garamukanwa had then suspected Ms Maclean had had a relationship with another member of staff, Ms Smith. According to the evidence, he then started a campaign of harassment against Ms Maclean including stalking her and sending unpleasant emails to her and her colleagues. As a result, she made a formal complaint to the police. The police investigation included them taking copies of incriminating photos he had on his mobile ‘phone. In light of the investigation, the employer decided to suspend him on full pay pending their own investigation. Whilst the police ultimately decided not to prosecute, the employer NHS Trust obtained copies of the photographs seized by the police from his mobile ‘phone. A disciplinary hearing was held and the Claimant, Mr Garamukanwa, was summarily dismissed for gross misconduct. He appealed, but the appeal was also dismissed.
A tribunal found that the decision to dismiss was within the range of reasonable responses for a reasonable employer and therefore fair. The evidence was found to justify the conclusion that the Claimant was guilty of gross misconduct: a wrongful dismissal claim also failed. In making his claim, the Claimant also raised the issue that his employer had breached his right to privacy (Article 8 of the European Convention on Human Rights – ‘ECHR’) by using the emails and other material he sent, together with the photographs from his mobile ‘phone. His contention was that they were entirely private and personal. It was this issue that reached the European Court of Human Rights, which upheld the view of the EAT, which found that the dismissal of an employee by an NHS Trust did not breach the employee’s right to privacy under Article 8 ECHR. The NHS Trust relied upon material that had been collected by, and passed on to them by, the police during their investigation into harassment allegations made against him by a colleague.
The European Court of Human Rights found that while business communications are capable of falling within the protection given to “private life” and “correspondence”, the Claimant could not have reasonably expected that any materials or communications linked to the criminal investigation would remain private, and the tribunal was fully entitled to reach this conclusion. Article 8 was therefore not engaged and the appeal dismissed. Leave to appeal to the Court of Appeal also dismissed.
Trade Unions: One-off direct offer is not unlawful inducement
In Kostal UK Ltd v Dunkley & others  EWCA Civ 1009 the company had been negotiating with the employees’ union, UNITE, in respect of certain employment contract terms and conditions through collective bargaining. Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) prohibits employers from circumventing this collective bargaining route and approaching the employees direct if the result is that such terms will not form part of the collective bargaining (an inducement to a ‘prohibited result’). In this instance, however, the negotiations had stalled and so the employer made two offers on two separate occasions. The offers created the prohibited result which was that the workers’ terms of employment, or any of those terms, “will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union” – i.e. circumventing the collective bargaining fifty-seven workers took the matter to the tribunal who made awards to each of them. The employer appealed.
The EAT agreed with the tribunal’s conclusion that the employer had sought to achieve a ‘prohibited result’ and dismissed the appeal. The Court of Appeal, however, took a different view of what constitutes a prohibited result. It found that a one-off direct offer did not constitute an unlawful inducement because section 145B only prohibits two types of scenarios:
- where an independent trade union is seeking to be recognised and the employer makes an offer whose sole or main purpose is to achieve the result that the workers’ terms of employment will not be determined by a collective agreement; and
- where an independent trade union is already recognised, the workers’ terms of employment are determined by collective agreement negotiated by or on behalf of the union, and the employer makes an offer whose sole or main purpose is to achieve the result that the workers’ terms of employment (as a whole), or one or more of those terms, will no longer be determined by collective agreement (i.e. the change takes the term or terms outside the scope of the collective bargaining on a permanent basis).
It distinguished these offers: where an independent trade union is recognised, the workers’ terms of employment are determined by a collective agreement negotiated by or on behalf of the union, and the employer makes an offer whose sole or main purpose is to achieve the result that one or more of the workers’ terms of employment will not, on this one occasion, be determined by the collective agreement. The appeal was successful and the claims were dismissed.
Tribunal proceedings: Extensions of time where belief reasonable
When bringing an employment tribunal claim, a claimant must complete a form ET1 and start the claim within certain prescribed time limits. In Lowri Beck Services Ltd v Brophy  UKEAT 0277_18_2503, the original Claimant, Mr P Brophy, brought claims of unfair and wrongful dismissal and of disability discrimination against his employer. Mr Brophy suffers with severe dyslexia and had been helped much of his life by his brother, Michael Brophy. Due to his difficulties and the emotional impact of being dismissed for gross misconduct, the Claimant had asked his brother to help him deal with his claim. It turns out the Claimant had misunderstood the date of his actual dismissal and this was compounded by the unclear nature of the employer’s letter causing the brother to genuinely get the wrong date of dismissal. This, in turn, meant the claims were brought out of time. The tribunal decided to extend time for these reasons, and that it would be just and equitable to extend time, there being no prejudice to the employer in doing so. The employer appealed against the extension.
The EAT held that the tribunal had not erred in its findings. This mistake had been one of fact not law. The issue was whether the brother’s belief was reasonable. The tribunal had found that it was, and was therefore entitled to conclude that it had not been reasonably practicable for the claim to have been presented in time. The extension was upheld and the appeal dismissed.
Holiday Pay: Under the Working Time Directive holiday pay must include regular voluntary overtime
The decision of the EAT in Dudley Metropolitan Borough Council v Willetts and others (which we previously reported in September 2017) has recently been approved by the Court of Appeal in East of England Ambulance Service NHS Trust v Flowers & Others  EWCA Civ 947. A number of ambulance crew worked ‘voluntary’ overtime. It was voluntary – they were under no obligation at all. They made a claim for unlawful deduction from wages to the employment tribunal, arguing that their voluntary overtime was not included with their ‘normal’ remuneration for the purposes of holiday pay calculation, and therefore they were owed pay.
The EAT in Dudley held that holiday pay under the Working Time Directive must include regular voluntary overtime, i.e. elements of pay that are sufficiently regular or recurring to qualify as “normal” must be included. The Court of Appeal expressly approved this decision and said that the patterns of voluntary overtime will be for the tribunals to determine, on a case-by-case basis, as to whether they are sufficiently regular and settled. Additionally, in this case, the Claimants’ contractual terms are to be found in the NHS Terms and Conditions of Service Handbook, a collective agreement popularly known as “Agenda for Change”. These required voluntary overtime to be included in the calculation of contractual holiday pay, and as Justice Soole in the EAT broke it down to be a mere question of construction, there being “no good basis to construe clause 13.9 so as to exclude overtime in the calculation of holiday pay”, which the Court of Appeal upheld.
Sexual Harassment and Discrimination: WEC publishes report on use of NDAs in discrimination cases
In November 2018, we reported that The Women and Equalities Committee (WEC) had launched a new inquiry looking at the use of non-disclosure agreements (NDAs)where any form of harassment or discrimination has been alleged. The committee was seeking written submissions on whether there are certain types of harassment or discrimination for which NDAs are more likely to be used, whether the use of NDAs should be banned or restricted in these cases and what safeguards may be necessary to prevent their unethical use.
The WEC has now published their report on ‘The use of non-disclosure agreements in discrimination cases’. Its findings show that NDAs are used as a matter of routine to ‘cover up’ unlawful discrimination and harassment and maintain confidentiality of employers in a variety of ways, such as preventing people from making protected disclosures under whistleblowing legislation, or preventing people from explaining to a new employer why their previous job ended, or preventing them from reporting an issue to the police. Settlement agreements will often include non-disparagement provisions. This is happening, the report suggests, because of the “substantial imbalance of power” between employers and employees. Employees are often left feeling that they have little choice but to sign the agreements and agree to their stringent conditions. The report also looked at the effect and practicalities of taking such a matter to an employment tribunal. Furthermore, the report also covers the emotional and psychological damage that can be inflicted upon those feeling forced into entering into NDAs, and how being in such a situation can make moving on and finding a new job more difficult.
The reports states:
This cover-up culture has to be challenged. NDAs should not be used to silence victims of discrimination and harassment. Employers and their legal advisers should not be complicit in using NDAs to cover up allegations of unlawful acts. Discrimination at work is unlawful and employers should not have the option to cover it up through the use of NDAs. They have a duty of care to provide a safe place of work for their employees and that includes protection from unlawful discrimination. Insufficient focus and force from regulators to require employers to do more to protect employees has to change. It is in the public interest that employers tackle discrimination and harassment and that allegations of such behaviour are investigated properly and not covered up by legally sanctioned secrecy. The Government has to reset the parameters within which NDAs can be used and must address the failure of the employment tribunal system to ensure all employees who have experienced discrimination have a meaningful route of legal redress.
The WEC suggest the Government follow these key recommendations:
- ensure that NDAs cannot prevent legitimate discussion of allegations of unlawful discrimination or harassment, and stop their use to cover up allegations of unlawful discrimination, while still protecting the rights of victims to be able to make the choice to move on with their lives;
- require standard, plain English confidentiality, non-derogatory and similar clauses where these are used in settlement agreements, and ensure that such clauses are suitably specific about what information can and cannot be shared and with whom;
- strengthen corporate governance requirements to require employers to meet their responsibilities to protect those they employ from discrimination and harassment; and
- require named senior managers at board level or similar to oversee anti-discrimination and harassment policies and procedures and the use of NDAs in discrimination and harassment cases.
They also renewed their previous calls (which have been rejected) for the Government to:
- place a mandatory duty on employers to protect workers from harassment and victimisation in the workplace; and
- urgently improve the remedies that can be awarded by employment tribunals as well as the costs regime to reduce disincentives to taking a case forward. Tribunals should be able to award punitive damages, and awards for the non-financial impact of discrimination should be increased significantly.
Health & Safety: Employers should support victims of domestic abuse
The figures on domestic abuse are shocking:
Two women a week are killed by a partner or former partner. One in four women and one in six men will experience domestic abuse in their lifetime, which can range from coercive behaviour to murder. That means we are all likely to know or work with someone suffering from it right now. The damage to people’s mental and physical well being is huge, as is the cost to the economy, calculated by government to be £66 billion a year, writes Iqbal Wahhab OBE in the Independent.
Over 270 companies and public sector businesses have joined the Employers Initiative on Domestic Abuse (EIDA) (https://eida.org.uk/) to help put a stop to this. The EIDA is a network of employers who have set up this organisation to work collectively to end domestic abuse, and support and protect domestic abuse victims in their workplaces. The EIDA website invites you to join them, there is no fee, and provides an employer’s toolkit, as well as other resources to help employers help their employees in crisis. Among the suggestions are for employers to introduce policies and educate staff to identify, support and signpost victims.
Health & Safety: IES publishes report regarding support for epileptic workers
One in 100 people in the UK suffer with Epilepsy but they are more than twice as likely as non-sufferers to be unemployed. The Institute for Employment Studies (IES) was commissioned by Epilepsy Action to conduct research to explore the factors that contribute to people with epilepsy being disadvantaged at work, and to identify what good employment support should look like. The report ‘Employment support for people with epilepsy – Qualitative research to identify what good employment support for people with epilepsy should look like’ has now been published.
The study revealed both a lack of knowledge on the part of employers about the condition, particularly its fluctuating nature, and the fear held by epilepsy sufferers that they would suffer discrimination in the workplace. IES’s recommendations include a personalised online toolkit – covering disclosure, health and safety, reasonable adjustments and other common concerns – could guide employers and employees in their conversations. Checklists and ‘job carving’ would help employers to assess employees’ capacity and fit with job tasks, and to make adjustments. These are areas that Epilepsy Action can address.The report also highlights the need for improved access to support services to empower people with epilepsy in their interactions with employers.
Data Protection: One year on since implementation of GDPR and Data Protection Act 2018
Can you believe it’s been a year since we all scrambled to get our policies, permissions and records straight? It has been a big change to the regulatory landscape and privacy is now arguably much better understood and appreciated.
The Information Commissioner, Elizabeth Denman, explains:
People have woken up to the new rights the GDPR delivers, with increased protection for the public and additional obligations for organisations. But there is much more still to do to build the public’s trust and confidence. The focus for the second year of the GDPR must be beyond baseline compliance. Instead organisations need to shift their focus to accountability with a real, evidenced understanding of the risks to individuals and how those risks should be mitigated.
With this in mind, the ICO has published a report detailing their work since 25 May 2018, looking back at what has been learnt over the last year, describes some of the work undertaken by the ICO to deliver the goals set out in its Information Rights Strategic Plan (such as supporting the public and organisations, and using its new enforcement and investigation powers). The report also looks at the ICO’s attempts to stay relevant and foster innovation to be an effective regulator both at home and abroad.
Parental Leave: UK ranks near bottom for family friendliness
The BBC recently reported that the UK is one of the worst countries in Europe for paid parental leave, according to UNICEF. Researchers for UNICEF looked 31 European countries and ranked them according to their paid parental leave and affordable childcare to assess how family-friendly they are. The UK came in at a disappointing twenty-eighth, followed only by Cyprus, Greece and Switzerland. Research revealed that UK parents were among the most likely to state that the high cost of childcare was the key factor dissuading them from using it. And yet many nurseries close or have to request top up fees from parents because their running costs are so high (even though childcare is not well paid) and the government’s ‘free childcare’ provision does not meet the actual cost of providing it.
Perhaps unsurprisingly, Sweden and Norway ranked first and second, because they have more progressive paid parental leave policies, with parents being able to split parental leave jointly and family time being much more important socially. These countries offered the equivalent of 35 and 45 weeks of paid leave respectively, while Estonia offers 85 weeks’ paid leave.
Family-friendly policies strengthen the bond between parents and their children, which is critical for the development of families and socially cohesive societies. UNICEF advocates for at least six months of paid leave for parents, and for universal access to quality, affordable childcare from birth to children’s entry into the first grade of school.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.
- TUPE: Dismissal due to difficult working relationship may be automatically unfair
- Contract: When ‘Bad Leaver’ provisions may be considered a penalty or an unlawful deduction from wages
- Employment Status: Is a quarterly ‘exclusivity’ payment evidence that an individual is an employee?
- Worker Status: Pimlico plumber ‘worker’ loses holiday pay claim
- Equality Act: Is it unfair to send woman on maternity leave an important email she cannot access?
- Indirect Discrimination: Justification of rule more important than application of rule to individual
- Data Protection: ICO and Insolvency Service work together to disqualify directors in new record
- BREXIT: ICO website contains SME Brexit preparation tools
- Data Protection: Vote Leave Ltd fined £40,000 by ICO
- Immigration: Seasonal workers pilot opens
- Modern Slavery: Annual anti-slavery audit will result in naming and shaming the non-compliers
- Holiday Pay: BEIS publishes guidance and online calculator for workers without fixed hours/pay
- Wages: National Minimum Wage and National Living Wage set to increase from 1 April
TUPE: Can a dismissal due to difficult working relationship be automatically unfair?
In Hare Wines Ltd v Kaur  EWCA Civ 216 the question before the Court of Appeal was whether the Claimant’s dismissal for purely ‘personal reasons’, was a sufficient reason to prevent the dismissal from being automatically unfair as it related to a TUPE transfer. In this case, Mrs Kaur was a cashier for a wine wholesaler, which had been run by several different businesses during the time she had worked there, with common directors/shareholders. In 2014, the business was transferred under TUPE to Hare Wines Ltd. Mrs Kaur and Mr Chatha were colleagues with a strained working relationship. Mr Chatha became a director of Hare Wines Ltd. On the day of the transfer, Mrs Kaur was dismissed, and all the rest of the employees transferred under TUPE to Hare Wines Ltd. Mrs Kaur claimed this was automatically unfair as it was related to the transfer, and the tribunal agreed.
Hare Wines Ltd argued that Mrs Kaur had objected to the transfer because she did not wish to work with Mr Chatha, who was to become a director. However, the tribunal held that this was not the case, and that the real reason was that the business did not want her because it may have continuing difficulties between the individuals. On appeal to the EAT and then the Court of Appeal, the tribunal’s finding that she had not objected was upheld and that the reason for the dismissal was not that she had been dismissed because of her difficulties with Mr Chatha with the transfer being coincidental, it was that the employer did not want her because she and Mr Chatha did not get on. This was the principal reason. The relationship had been strained for some time and she had not been dismissed until the transfer was to happen, therefore the two were linked. The Court of Appeal noted that dismissals for economic, technical or organisational (aka ‘ETO’) reasons connected with transfers can be fair, but the law does not recognise any category of ‘personal’ reason for dismissal as preventing a transfer-related dismissal from being automatically unfair.
Contract: When ‘Bad Leaver’ provisions may be considered a penalty or an unlawful deduction from wages
In Nosworthy v Instinctif Partners Ltd UKEAT/0100/18, Miss Nosworthy had entered in to a Share Purchase Agreement and Articles of Association with the company, which contained some common bad leaver conditions. The conditions meant that a shareholder who is also an employee who voluntarily resigns is considered to be a bad leaver . In this case, the bad leaver provisions meant that when Miss Nosworthy resigned she was forced to forfeit deferred earn-out shares and loan notes – i.e. transfer her shares – with the value of the shares being determined at the acquisition cost (which was £143 for her 2% share). Miss Nosworthy claimed this forced transfer was a contract connected with employment and therefore could be considered to be unconscionable, a penalty or an unlawful deduction from wages
The tribunal disagreed, and this finding was upheld by the EAT. The criteria for setting aside an agreement as unconscionable were not satisfied – there had been no serious disadvantage. It was not a penalty as a result of a breach of contract, because it was a term of the Articles of Association which applied to any bad leaver, regardless of breach, and was not a breach of contract. Furthermore, the company’s remuneration committee, which had the power to reclassify her as a good leaver, had not failed to exercise its discretion in good faith because there were no exceptional circumstances for it to take into account. Lastly, it was not an unlawful deduction from wages, because the definition only covers payments made in respect of her capacity as a worker, whereas the shares were provided to her as a shareholder.
Employment Status: Is a quarterly ‘exclusivity’ payment evidence that an individual is an employee?
In Exmoor Ales Ltd & Another v Herriot UKEAT/0075/18/RN theEAT Mrs Herriot had provided accountancy services for Exmoor Ales, a brewery, for nearly three decades, submitting invoices from her partnership. Since 2011, the brewery had paid her £1,000 each quarter, which Mrs Herriot claimed was an exclusivity payment, but which the respondents denied. In 2017 Mrs Herriot brought claims against the brewery just before her work relationship with it ended. The claims were for unfair dismissal, age discrimination, holiday pay, failure to provide a statement of written particulars of employment, harassment and victimisation.
The tribunal found, on the evidence, that the quarterly payment did indeed change the nature of the relationship from that point onwards and that she did in fact, stop working for other clients. The brewery had also given her allocated seating in their premises, she was fully integrated into their business, and exercised a high level of control over her whilst at work. It was also noted that there was mutuality of obligations between the parties from April 2011 onwards, and she had no right to appoint a substitute. The tribunal therefore held that until that time, Mrs Herriot had been an independent contractor providing accountancy services to the brewery but after the quarterly payments started, she was in actual fact an employee.
The brewery appealed arguing that the tribunal had not looked at all the relevant factors on employment status, including her tax arrangements, and that she had prepared employment contracts for other staff but not herself, and was not a member of the employee share scheme. These were rejected by the EAT, however, because the tribunal had considered these elements but found the factors highlighted by it had overridden those identified by the Respondents. In this instance, the quarterly exclusivity payment had been an influencing factor although in reality it was the effect it had on their respective behaviours that led the tribunal and EAT to find her to be a de facto employee.
Worker Status: Pimlico plumber ‘worker’ loses holiday pay claim
Last year the Supreme Court ruled in Pimlico Plumbers Ltd & Another v Smith that the plumbers had been employed by Pimlico Plumbers as workers rather than being hired as independent contractors. As workers, this meant they were entitled to some basic employment rights such as the right to be paid the national minimum wage and holiday pay. At the end of his successful seven year battle with Pimlico Plumbers, Mr Smith began proceedings in the Croydon employment tribunal for backdated holiday pay. However, the tribunal ruled that he had not filed his claim quickly enough – the regulations state that claims for missed pay should be filed within 3 months of each holiday period, dating back to 2005. His claim amounted to £74,000. He is going to appeal this decision because he did not know he was entitled to paid leave while he was employed by Pimlico Plumbers so did not bring a claim until after his contract was terminated in May 2011.
Equality Act: Is it unfair to send woman on maternity leave an important email she cannot access?
In South West Yorkshire Partnership NHS Foundation Trust v Jackson UKEAT/0090/18/BA the claimant was on maternity leave when she became part of a number of staff at risk of redundancy who were then sent an email by the HR department to their work email addresses, which the claimant could not access, setting out redeployment opportunities. She was not able to open the email for several days but this in itself did not cause her substantial harm. However, it raised a legitimate concern that such behaviour was unfavourable treatment (s.18(4) of the Equality Act) because she was exercising her right to take maternity leave, and it is on this ground that she made a claim.
The tribunal upheld her claim. However, the EAT found that the tribunal had erred in its approach to the causation test. Although the unfavourable treatment would not have happened “but for” the fact that the Claimant was on maternity leave, the tribunal had not considered whether this was the “reason why” she had been treated unfavourably. There was no finding by the tribunal as to why the Claimant was not able to access her emails, as she had in fact attended a meeting a few days before despite being on maternity leave.
Mr Justice Shanks said, the “ET must ask itself the standard “reason why” question in relation to why the unfavourable treatment took place and that it is not sufficient for the “but for” test to be satisfied for there to be a finding of discrimination under section 18.” He went on to say that it did not seem as if the tribunal had found that the characteristic of being on maternity leave had been on anyone’s mind, nor had the tribunal decided that an inherently discriminatory rule had been applied in this case. It seems to have been pure administrative error and therefore the test used by the tribunal was that ‘but for being on maternity leave, the Claimant would not have been disadvantaged’, which was not sufficient for a finding of discrimination. As a result the case was remitted back to the tribunal for further findings.
Contract: Suspending an employee does not always breach the implied term of trust and confidence
In The Mayor and Burgesses of the London Borough of Lambeth v Agoreyo  EWCA Civ 322 a primary school teacher was accused of using excessive force with two pupils with special educational needs, and suspended pending investigation as a result. The teacher, Ms Agoreyo, resigned the same day. She claimed that the suspension had been a knee-jerk reaction and that an investigation did not require suspension. The suspension was a repudiatory breach of contract – a breach of the implied term of mutual trust and confidence between them, and she was entitled to resign and claim constructive dismissal.
At first instance, the County Court found that the school had reasonable and proper cause for her suspension. The claim was dismissed. Ms Agoreyo appealed. The High Court allowed the appeal on the basis that suspension should not be the default option – an individual should be suspended only if there is no reasonable alternative. The school had said the suspension was a neutral act but the High Court disagreed and said that it is never a neutral act. Ms Agoreyo’s resignation letter neither negated nor undermined the case on breach of the implied term as to trust and confidence.
On further appeal however, the Court of Appeal agreed with the County Court, and held there was no breach of trust and confidence. It found the High Court had erred in its test of whether it was necessaryto suspend was setting the bar too high and the correct legal test was whether the school had had reasonable and proper cause to suspend Ms Agoreyo. The County Court judge was entitled to hold that it did and Ms Agoreyo’s claim that her suspension was a breach of contract failed.
Indirect Discrimination: Justification of rule more important than application of rule to individual
In The City of Oxford Bus Services Limited t/a Oxford Bus Company v Harvey UKEAT/0171/18/JOJ a bus company had instituted a rule in the rostering system that bus drivers had to work 5 out of 7 days, including Saturdays or Sundays. Mr Harvey was a Seventh Day Adventist who asked not to work between sunset on Friday and sunset on Saturday so that he could observe the Sabbath. The bus company had given him a service that was able to take this into account but it was not a permanent arrangement and so he subsequently had to swap shifts or call in absent from work on the days when he was required to work a shift on Friday evening or Saturday daytime. They had also offered him flexible working but in the meantime he had brought a claim of indirect discrimination on the grounds of religion or belief.
The bus company argued that it feared that if it agreed to this as a permanent arrangement, more drivers would ask for time off for other religious reasons, particularly events and festivals, and this might result in industrial unrest. At tribunal it was accepted that the bus company’s working arrangements imposed a ‘provision, criterion or practice’ (“PCP”) that placed Mr Harvey at a disadvantage. So, the question then was, whether the PCP was a proportionate means of achieving a legitimate aim. The tribunal found that the bus company had established legitimate aims of ensuring efficiency, fairness to all staff, and recruitment and retention. In upholding Mr Harvey’s claim, however, the tribunal ruled that the PCP was not justified becausethere was insufficient evidence to support one of the legitimate aims – maintaining a ‘harmonious workforce’.
On appeal to the EAT the decision was overturned the decision. It was incorrect of the tribunal to focus on the particular application of the rule on the claimant rather than the general justification for the rule. The tribunal had recognised that the bus company’s problems arose not from granting the Mr Harvey’s request, but from granting many such requests, and in doing so meant it had failed to balance the general aims of the bus company with the potentially discriminatory impact of the rule. The judge remitted the case back to the original tribunal to reconsider this issue.
Data Protection: ICO and Insolvency Service work together to disqualify directors in new record
The Information Commissioner’s Office (ICO) has carried out investigations into nuisance marketing which, by working with the Insolvency Service, has led to 16 company directors being banned from running a company for more than 100 years in total. One of the worst offenders was Richard Jones who has been barred from being a company director for eight years after his two companies, Your Money Rights Ltd and Miss-Sold Products UK Ltd were responsible for 220 million automated nuisance calls, most of which were in respect of PPI claims. The companies’ breaches resulted in total fines of £700,000 in 2017, which Mr Jones then tried to avoid by applying to wind up the companies. This was blocked by the ICO which then referred the case on to the Insolvency Service.
New legislation which came into force in December 2018 means that the ICO now has powers to make company directors and other company officers personally liable for the fines imposed for illegal marketing.
BREXIT: ICO website contains SME Brexit preparation tools
Who knows what the next few weeks have in store, but that’s not very helpful for businesses. Whilst most businesses may well be more prepared than the government, the ICO has produced guidance and practical tools to help organisations prepare in terms of their data, including: Data Protection and Brexit Law enforcement processing: Five steps to take, Data protection in the event of a no-deal Brexit, aimed at UK based businesses or organisations to which the GDPR or Part 3 of the Data Protection Act 2018 currently applies to their processing of personal data.
Data Protection: Vote Leave Ltd fined £40,000 by ICO
Vote Leave Limited has recently been fined £40,000 by the Information Commissioner’s Office (ICO) for sending out thousands of unsolicited text messages run up to the 2016 EU referendum. An ICO investigation found that Vote Leave sent 196,154 text messages promoting the aims of the Leave campaign with the majority containing a link to its website. Vote Leave claimed the contact information it had used to message people was obtained from enquiries which had come through their website; from individuals who had responded via text to promotional leaflets; and from entrants to a football competition. However, the organisation said that following the conclusion of the referendum campaign it had deleted evidence of the consent relied upon to send the messages. Also deleted were details of the phone numbers the messages were sent from, the volume of messages sent, and the volume of messages received. Being unable to provide evidence that the people who received the messages had given their consent (a key requirement of electronic marketing law) made them liable for this fine.
This latest fine is part of the ICO’s ongoing investigation into the use of data in political campaigns. As a result of the investigation the ICO has taken action against a number of different organisations engaged in campaigning for breaches of direct marketing and data protection laws.
Immigration: Seasonal workers’ pilot opens
In September 2018, the Home Secretary and Environment Secretary announced that, having listened to farmers, they were introducing a nationwide pilot scheme seasonal workers to bring seasonal migrant workers to UK farms. The pilot opened on 6 March meaning that UK fruit and vegetable farmers will be able to employ migrant workers for seasonal work for up to 6 months. Subject to recruitment and visa application processes, the pilot, which runs until the end of December 2020, will allow up to 2,500 workers from outside the EU into the UK each year. Concordia and Pro-Force are the two scheme operators who have been licensed to manage the pilot. It is their responsibility to identify suitable workers who they will then match to UK farmers, as well as ensuring the welfare of the workers whilst they are in the UK.
The aim is to test the effectiveness of the immigration system at alleviating labour shortages during peak production periods.The pilot will be reviewed before any decisions are taken on running a future scheme.
Modern Slavery: Annual anti-slavery audit will result in naming and shaming the non-compliers
In October 2018, the Home Office was moved to action following pressure from numerous groups frustrated by what they see as ‘blatant compliance failures’. It began with the Home Office writing directly to the chief executives of 17,000 businesses telling them to open up about modern slavery in their supply chains, or risk being named as in breach of the Modern Slavery Act. The letter gave the companies a grace period to comply – which ends on 31 March 2019.
Those businesses which do not comply by the deadline date will be “named and shamed” in a public report. The ‘naming and shaming’ is seen as a prelude to strengthening the reporting requirements under the legislation and, possibly, introducing sanctions for non-compliance.
The government reports that:
Businesses with a turnover of more than £36 million must publish annual transparency statements, known as a Modern Slavery Statement, setting out what they are doing to stop modern slavery and forced labour practices occurring in their business and supply chains. At the moment, it is estimated that 60% of companies in scope have published a statement. Whilst there are many examples of good practice, some of these statements are poor in quality or fail to even meet the basic legal requirements.
Holiday Pay: BEIS publishes guidance and online calculator for workers without fixed hours/pay
The Department for Business, Energy and Industrial Strategy (BEIS) has published guidance and an online calculator on how to calculate holiday pay for workers whose hours or pay are not fixed. This guidance is intended to help employers pay the correct amount of holiday pay for all their workers.
In simple terms, the Working Time Regulations 1998 mean that almost all workers are legally entitled to 5.6 weeks’ paid holiday per year, with the pay being calculated based on the amount of hours they work and how they are paid for those hours. For workers who do not work fixed or regular hours, and therefore do not receive the same amount of pay each week, month or other pay period, it can be more complicated. This guidance helps employers calculate holiday for such workers, using the holiday pay reference period (a worker’s previous 12 week paid period) and gives examples of what to do if you don’t have 12 weeks of data, when the reference period starts, what the definition of week is, etc.
Wages: National Minimum Wage and National Living Wage set to increase from 1 April
In the Budget 2018, in response to the Low Pay Commission’s recommendations the Chancellor, Philip Hammond, announced new National Minimum/Living Wageincreases from 1 April 2019 as follows:
- from £7.83 to £8.21 for workers aged 25 and over (the National Living Wage)
- from £7.38 to £7.70 for 21-24 year olds
- from £5.90 to £6.15 for 18-20 year olds
- from £4.20 to £4.35 for 16-17 year olds
- from £3.70 to £3.90 for apprentices aged under 19 or in the first year of their apprenticeship.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.