Employment Law Newsletter – March 2021
- COVID-19: Driver who refused to wear face mask was fairly dismissed
- Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
- Working time: When standby periods can count as working time
- TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
- Workers: Uber commits to paying drivers a minimum hourly wage during trips
- Spring Budget: Employment issues
- COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
- COVID-19: ACAS updates working safely guidance regarding testing and vaccination
- COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
- Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
- Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
- Racism: Rise in BME unemployment is double that of white Britons
- Flexible working: Minister for Women and Equalities calls for flexible working to be normalised
COVID-19: Driver who refused to wear face mask was fairly dismissed
In Kubilius v Kent Foods Ltd  UKET 3201960/2020 Mr Kubilius was employed as a delivery driver by Kent Foods Ltd (Kent). Kent’s employee handbook required courteous treatment of clients and that employees take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work. Its driver’s handbook required customer instruction regarding PPE to be followed. Mr Kubilius worked at Kent’s Basildon depot where the majority of the work involved travel to and from the Thames refinery site of Tate & Lyle (Tate).
Due to the COVID-19 pandemic, Tate required face masks to be worn at the Thames refinery site and all visitors were issued with a face mask on arrival. On 21 May 2020, despite being asked by two Tate employees, Mr Kubilius refused to wear a face mask while he was in the cab of his vehicle. He was told that without one, droplets from his mouth were going to land on peoples’ faces due to his elevated position in his cab and that Tate’s rules required him to wear a face mask until he left its site. Mr Kubilius maintained his refusal, arguing that his cab was his own area and that wearing a face mask was not a legal requirement. Tate reported the incident to Kent and banned Mr Kubilius from its site. Following an investigation, Mr Kubilius was invited to a disciplinary hearing into the allegation that, in refusing to comply with Tate’s instruction regarding PPE, he had breached the requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius was summarily dismissed.
An employment tribunal held that the dismissal had been fair. Kent had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation into facts that were not in significant dispute. It had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal. While another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses. Kent had been entitled to take account of the importance of maintaining good relationships with its clients, Mr Kubilius’s continued insistence that he had done nothing wrong (which caused concern as to his future conduct) and the practical difficulties arising from his being banned from Tate’s site.
Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
Two cases were brought before the Court of Appeal based on the same sequence of events and with the same Appellant, Mr Richard Page. The appeals were heard consecutively at the same hearing but two separate judgments were given. (Page v NHS Trust Development Authority  EWCA Civ 255 and Page v Lord Chancellor and another  EWCA Civ 254.) Mr Page was a Non-Executive Director of the Kent and Medway NHS and Social Care Partnership Trust, which is responsible for the delivery of mental health services in Kent. He gave media interviews, including two on national television, in which he expressed his personal views based on his devout Christianity that, it is always in the best interests of every child to be brought up by a mother and a father, and therefore he did not consider it was appropriate for a child to be adopted by a single parent or same sex couple. He also made it clear that he thought that homosexual activity was wrong and that he did not agree with same-sex marriage.
His appointment with the NHS Trust was for a four-year term. Following an investigation the authority that dealt with terminations made findings which would normally have led to the termination of Mr Page’s appointment as a Director. In fact, by the time that it made its decision his current term had expired, but the practical effect of its findings was to prevent him from applying to serve a further term or serving as a Non-Executive Director of a different Trust.
Mr Page was also a magistrate, sitting on the Central Kent bench, where he was a member of the family panel. In December 2014, following a formal disciplinary process, he was reprimanded by the Lord Chief Justice as a result of an incident in which he declined to agree to the adoption of a child by a same-sex couple. The reprimand was reported in the press, and it is clear that Mr Page had spoken to reporters about it and expressed his views about same-sex adoption. Mr Page did not inform the NHS Trust or the authority about the disciplinary action taken against him by the Lord Chief Justice or about his contacts with the press.
Mr Page commenced proceedings against the authority on the basis that the termination decision, and the suspension and investigation which led to it, constituted unlawful discrimination and harassment by reference to his religion or belief, and also victimisation, contrary to Part 5 of the Equality Act 2010.
The Court of Appeal held that the employment tribunal was entitled to find that the authority did not discriminate against a Christian non-executive director, Mr Page, on religious grounds when it decided not to renew his term after he spoke out in public against homosexuality and same-sex couple adoption. The Court also held that the tribunal had been entitled to find that Article 9 of the European Convention of Human Rights (freedom of religion) was not engaged but, if it had been, it would not have been breached because any limitation placed on the right to freedom of religion in this case was justified as being necessary and proportionate in the circumstances. There was no direct discrimination because Mr Page was removed for repeatedly speaking to the media without first informing the Trust, despite repeated requests to seek permission, and not because of his religious belief. There had been no indirect discrimination because however a provision, criterion or practice may have been formulated, it was hard to see how the tribunal’s conclusion on justification in relation to Article 9 would not similarly apply to the indirect discrimination claim. There had been no victimisation because the protected acts relied on by Mr Page had not been the reason for the action taken against him.
In concluding remarks, the court observed that there are circumstances in which it is right to expect Christians (and those of other faiths) who work for an institution, especially if they hold a high-profile position, to accept some limitations on how they express their beliefs in public on matters of particular sensitivity. Whether such limitations are justified in a particular case can only be judged by a careful assessment of all the relevant circumstances in order to strike a fair balance between the rights of the individual and the legitimate interests of the institution they work for.
In the other case before the Court of Appeal, Mr Page argued he had suffered victimisation when he was removed from office as a magistrate following his media interviews. The Court, however, found that the only issue on the appeal was whether Mr Page had been removed as a magistrate because he had complained about potential religion and belief discrimination in relation to earlier disciplinary proceedings against him. The Court upheld the finding that this had not been the reason for his removal. He had been removed because he had declared publicly that, in dealing with cases involving adoption by same-sex couples, he would proceed not on the basis of the law and the evidence, but on the basis of his own preconceived beliefs about such adoptions. His removal was lawful under the Equality Act 2010 and involved no breach of his right to freedom of expression under Article 10 of the European Convention on Human Rights.
The Court reached its decision without needing to hear the respondents’ submissions. Permission to appeal to the Supreme Court was refused.
Working time: When standby periods can count as working time
In DJ v Radiotelevizija Slovenija (Case C-344/19) EU:C:2021:182 the ECJ has held that a period of standby would not, in its entirety, be working time under the Working Time Directive (2003/88/EC) only because a worker was required to be contactable by telephone and able to return to their workplace, if necessary, within a time limit of one hour, while being able (but not required) to stay in accommodation provided by their employer. However, it would be for the referring national court to assess the facts of the case, including the consequences of the time limit and the average frequency of activity during standby periods, since these might establish that the constraints imposed on the worker objectively and very significantly affected their ability to manage their time and devote that time to their own interests. Limited opportunities to pursue leisure activities within the immediate vicinity of the workplace was not relevant to that assessment.
The constraints that may be taken into account when deciding whether a period of standby is working time are those imposed on the worker by national law, a collective agreement or by the employer pursuant to either the worker’s contract or the employer’s system of dividing standby time between workers. By contrast, organisational difficulties that a period of standby may generate for the worker, which are not the result of such constraints but are, for example, the consequence of natural factors or of the worker’s own free choice, may not be taken into account.
In this case, a worker who spent time at two television transmission centres situated in mountains in Slovenia argued that time he spent on standby during which he had to be contactable by telephone and able to return to the transmission centre within one hour was working time. While he was not required to remain at the workplace, the geographical location of the transmission centres meant that he had to do so while he was on standby. Consequently, he had limited opportunities for leisure activities and stayed in on-site accommodation provided by his employer that he was entitled (but not required) to use.
TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
In Greater Glasgow Health Board v Neilson  UKEATS/0013/20 the EAT has held that a tribunal made a number of errors when, in a claim for unfair dismissal in the context of a TUPE transfer, it ordered re-engagement of the claimant by the new service provider who had not been a party to proceedings on the basis that it was a successor employer.
Given the tribunal’s finding that the claimant had been assigned to an organised grouping that had transferred to the new service provider, there was no basis in law on which the tribunal could have properly ordered any remedy against the respondent in respect of the claimant’s dismissal. The case was remitted for a fresh tribunal to consider remedy in connection with which the claimant would need to consider whether to apply to join the new service provider as a respondent.
The tribunal had also erred when it made an order that the claimant should be re-engaged by the new service provider as a successor employer as defined by the provisions of the Employment Rights Act 1996. Referring to the EAT’s decision in Dafiaghor-Olomu v Community Integrated Care and Cornerstone Community Care UKEATS/0001/17, the EAT noted that the circumstances in which there is a successor employer following a TUPE transfer will be very limited.
Workers: Uber commits to paying drivers a minimum hourly wage during trips
Following last month’s landmark Supreme Court ruling that its drivers are workers under UK employment legislation, Uber has announced that from 17 March 2021 all of its drivers, irrespective of their age, will receive at least the National Living Wage (NLW), after expenses, once they have accepted a trip request (see February’s newsletter). No mention has been made of compensation for past entitlements and drivers will not be paid at this rate when they are not carrying out trips.
The pay rate, amounting to £8.72 per hour, will create an earnings floor (not an earnings ceiling) and has been introduced alongside automatic enrolment into a pension plan, which both Uber and its drivers will contribute to. All drivers will receive paid holiday time based on 12.07% of their earnings, paid on a fortnightly basis, as well as free insurance to cover sickness, injury and parental payments. This insurance cover was introduced in 2018. Uber has confirmed that drivers will still be able to choose when and where they drive.
The Independent Workers Union of Great Britain is calling on HMRC to enforce the Supreme Court ruling and ensure that drivers receive a minimum rate of pay from the moment they log onto the app, not only when they are carrying out trips.
Spring Budget: Employment issues
On 3 March 2021, the Chancellor, Rishi Sunak, delivered the Spring 2021 Budget. The announcements relevant to those involved in employment law mainly concern ongoing support during the COVID-19 pandemic:
- The Coronavirus Job Retention Scheme (CJRS) is being extended until the end of September 2021. Furloughed employees will continue to receive 80% of their salary for hours not worked but employers will be required to make a contribution towards the cost of unworked hours of 10% in July and 20% in August and September.
- The Self-Employment Income Support Scheme (SEISS) is also being extended with a fourth grant covering the period February to April 2021 and a fifth and final grant covering May to September 2021.
- The Chancellor also announced investment in a Taxpayer Protection Taskforce to combat fraud within COVID-19 support packages, including the CJRS and SEISS.
- There will be temporary continuation of tax exemptions for COVID-19 tests and home office expenses (see below), and of the Statutory Sick Pay (SSP) Rebate Scheme while sickness levels remain high.
- Looking to the future, the Chancellor made announcements about increased support for traineeships and apprenticeships.
COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
As promised in the Spring 2021 Budget, on 8 March 2021, Regulations were made extending the temporary tax exemption for employer reimbursement of home office expenses to the tax year 2021-22. The exemption covers the cost of equipment purchased by the employee for the sole purpose of enabling the employee to work from home due to COVID-19. Corresponding Regulations (NICs Regulations), ensuring that such reimbursement is disregarded for NICs purposes, were also made on 8 March 2021.
The NICs Regulations also extend the temporary disregard of employer-reimbursed coronavirus antigen test costs to the tax year 2021-22. The corresponding income tax exemption for that reimbursement will be introduced in the Finance Bill 2021.
Additionally, as anticipated following the government’s written statement on 4 March 2021, an Order was made to increase the van benefit charge and fuel benefit charges for company vehicles. The increased charges take effect from 6 April 2021 as follows:
- Flat-rate van benefit charge: £3,500 (increased from £3,490).
- Multiplier for the car fuel benefit charge: £24,600 (increased from £24,500).
- Flat-rate van fuel benefit charge: £669 (increased from £666).
COVID-19: ACAS updates working safely guidance regarding testing and vaccination
ACAS has updated its “Working Safely During Coronavirus” guidance to provide further information about workplace testing and vaccination for COVID-19. The page entitled “Testing staff for coronavirus” contains a new section setting out what it would be good practice for employers to discuss with staff when agreeing to implement workplace testing. This includes how testing would work, how staff will get their test results and how the employer plans to use and store testing data in line with the UK GDPR. If staff are concerned about testing, the guidance suggests that it may help for employers to consider paying them their usual rate of pay for time off after a positive test or furloughing them. However, some have suggested it is unclear whether the CJRS can be used in this way.
The guidance now also contains a page dedicated to “Getting the coronavirus vaccine for work” which includes a section on how to support staff to get the vaccine. This highlights similar points for discussion as in relation to workplace testing and suggests that employers could consider offering paid time off for vaccination appointments and full pay (rather than SSP) if staff are off sick because of vaccine side effects. The guidance advises that, in most circumstances, it is best for employers to support staff to get the vaccine without making it a requirement. However, if an employer feels it is important for staff to be vaccinated, they should consult with staff. Where further steps are necessary, these should be recorded in writing (for example, in a policy).
Interestingly, several points which were previously contained in the guidance have now been removed. In particular, the guidance no longer states that:
- Employers cannot force staff to be vaccinated.
- Employers should only make getting the vaccine mandatory if it is necessary for someone to do their job.
- That, if an employer believes that an employee’s reason for refusing a vaccine is unreasonable, this may in some circumstances be a disciplinary issue.
The removal of these points perhaps suggests an acknowledgement that they are not straightforward. Nevertheless, these are still likely to be issues that employers will need to grapple with over the coming months.
COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
In light of the continuing effects of the COVID-19 pandemic, the Equality and Human Rights Commission (EHRC) has confirmed that gender pay gap enforcement action for the reporting year 2020-21 will be suspended until 5 October 2021.
Under the Equality Act 2010 (Specific Duties) Regulations 2011 (SI 2011/2260) and the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172), public sector bodies and private sector employers would have been required to submit their gender pay gap reports by 30 March and 4 April respectively. The suspension of enforcement action effectively means that employers have an additional six months to meet their reporting obligations for 2020-21.
The EHRC has described the delay as striking a balance between supporting businesses through challenging times and enforcing the important gender pay gap reporting obligations. Employers are encouraged by the EHRC to report before October 2021 where possible.
Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
Research conducted by law firm Fox & Partners has revealed that female directors working in the UK’s biggest financial services firms earn an average yearly wage of £247,100, 66% lower than the £722,300 earned by male directors.
The research suggests that the significant gender pay gap is indicative of the limited opportunities open to women looking to secure higher paid executive roles at FTSE 100 and 250 firms. According to the data, 86% of the female company directors accounted for were in non-executive roles which receive lower pay and encompass fewer daily responsibilities.
Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
On 24 February 2021 the Hampton-Alexander Review published its fifth and final annual report on improving gender balance in FTSE leadership.
The report states that as at 11 January 2021:
- Women held 36.2% of FTSE 100 board positions (up from 32.4% in 2019), but 32 FTSE 100 companies had not yet achieved the 33% target.
- Women held 33.2% of FTSE 250 board positions (up from 29.6%), but 139 FTSE 250 companies had not yet achieved the 33% target.
- Across the FTSE 350 there were only 39 female chairs (11 in the FTSE 100), 89 female SIDs (23 in the FTSE 100) and 17 female CEOs (8 in the FTSE 100). There were only 76 female executive directors (31 in the FTSE 100), being 12.1% of executive directors in the FTSE 350.
As of 28 January, the FTSE 350 no longer had any all-male boards, but still had 16 companies with only one woman on the board.
Racism: Rise in BME unemployment is double that of white Britons
The TUC’s analysis, as reported by the Guardian, of recently published ONS data has revealed that the overall unemployment rate for BME (black and minority ethnic) groups rose from 5.8% in the final quarter of 2019 to 9.5% in 2020. This growth rate is double that recorded for white people whose unemployment figures rose from a much lower 3.4% to 4.5% in the same period. It argues that the data serves as a “mirror to the structural racism” currently at play in Britain.
Charitable trust ‘Hope Not Hate’ has emphasised the role of COVID-19 in escalating the BAME (Black, Asian and Minority Ethnic) unemployment crisis. According to a poll it recently conducted, one in five BAME people had lost their jobs, with 22% blaming the pandemic for their unemployment.
Flexible Working: Minister for Women and Equalities calls for flexible working to be normalised
The Government Equalities Office has published a report by the government-backed Behavioural Insights Team and jobs website Indeed, Encouraging employers to advertise jobs as flexible, which revealed that job adverts which offer flexible working increase applications by up to 30%.The research, which analysed nearly 20 million applications and is the largest of its kind ever conducted in the UK, shows greater transparency in job adverts would create at least 174,000 flexible jobs to the UK economy per year.
Almost 40% of employees worked from home in 2020, and the appetite for flexibility hit new heights during the COVID-19 pandemic. Research has shown that 9 out of 10 jobseekers want increased flexibility, be it remote working (60%), flexitime (54%) or reduced hours (26%).
Minister for Women and Equalities, Liz Truss MP, called for employers to make flexible working a standard option for employees. She argues this would boost productivity and morale and improve the employment prospects of women (who are twice as likely as men to work flexibly) and those who live outside major cities.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
Employment Law Newsletter – October 2020
- Age discrimination: Establishing group and individual disadvantage for indirect discrimination
- Vicarious Liability: Employee’s practical joke in the workplace goes too far for vicarious liability
- Equality Act: Christian employee’s beliefs against gender fluidity were protected beliefs
- Equality Act: Gender fluid employee awarded £180,000 in compensation following landmark discrimination case
- Whistleblowing: Imposing new contract was a one-off act, not an act extending over a period
- COVID-19: New regulations make self-isolation legal requirement and introduce fines
- COVID-19: Two-thirds of employers see rising interest in flexible working from male employees and better relationships all round
- HR Guidance: CIPD and EHRC publish guide on supporting employees suffering domestic abuse
- Gender Pay Gap: UK Gender Pay Gap legislation much less ”robust” than in other countries, report finds
- Equality: The number of executive positions occupied by women remains “stubbornly low”
- Anti-racism: MHFA England guidance on creating anti-racist workplaces published
- Ethnic diversity: CBI sets new targets to increase racial and ethnic diversity while Legal & General use their vote to force boardroom change
- Data Protection: H&M fined EUR35 million in Germany for GDPR breach after storing “extensive” employee data
Age discrimination: Establishing group and individual disadvantage for indirect discrimination
In Ryan v South West Ambulance Services NHS Trust  UKEAT/0213/19 the EAT has held that an employee was indirectly discriminated against on grounds of age on the basis that she was excluded from applying for a promotion because, while it was open to her to apply, she was not in the employer’s “talent pool“. The pool had been established as a quick way of finding talented employees to fill vacancies at short notice and without having to advertise externally.
The employee established that there had been a group disadvantage since there were statistics to show that there was a reduced likelihood, due to age, of employees aged 55 and above being in the pool. The EAT also held that she was personally disadvantaged because she was not considered for roles that she would otherwise have been considered for because the employer had looked to fill the vacancies from the pool. The employer argued that she had not tried to access the pool by all routes available to her, but having failed to adduce evidence of this, could not prove that the discriminatory effect of the rule was not at play in her particular case.
The EAT also reminded the parties of the importance of accuracy in how discrimination claims are articulated and of the need to identify group disadvantage before considering individual disadvantage. In this case, neither of the parties had identified in the case management summary or at any time after, that there was inconsistency between the group and the individual disadvantage which was the subject of the complaint.
Vicarious Liability: Employee’s practical joke in the workplace goes too far for vicarious liability
In Chell v Tarmac Cement and Lime Ltd  EWHC 2613 (QB) the High Court has upheld a county court decision that an employer was not negligent or vicariously liable for the actions of an employee whose practical joke unintentionally caused injury to a contractor at work. The court held that it was expecting too much of an employer to devise and implement a health and safety policy, or other policy or site rules, which descend to the level of horseplay or the playing of practical jokes. It accepted that the contractor had previously made his supervisor aware that there were rising tensions between employees and contractors on-site. However, there was no foreseeable risk of injury as tensions were not so serious as to suggest the threat of violence or confrontation. Increased supervision to prevent horseplay, ill-discipline or malice was therefore not a reasonable step to expect this employer to have identified and taken.
Following the Supreme Court’s decision in WM Morrison Supermarkets plc v Various Claimants  UKSC 12 (in which the Supreme Court held that Morrisons was not vicariously liable for the actions of an employee who, without authorisation and in a deliberate attempt to harm his employer, uploaded payroll data to the internet using personal equipment at home) the court held that, although the incident happened in the workplace, the employer was not vicariously liable for the employee’s actions. Those actions were unconnected with any instruction given to the employee in connection with his work and did not in any way advance the purpose of his employer. The workplace merely provided the opportunity to carry out the prank, rather than it being within the employee’s work activities.
Equality Act: Christian employee’s beliefs against gender fluidity were protected beliefs
In the case of Higgs v Farmor’s School ET/1401264/19 an employment tribunal has held that a Christian employee’s beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender were worthy of respect in a democratic society and could therefore be protected beliefs under the Equality Act 2010. However, the tribunal held that the employee had not been directly discriminated against or harassed because of those protected beliefs. Mrs Higgs worked as a pastoral administrator and work experience manager at Farmor’s School. She had been disciplined and dismissed for gross misconduct for breaching the school’s conduct policy because of the inflammatory language used in her Facebook posts which could have led readers to believe that she held homophobic and transphobic beliefs. Mrs Higgs claimed that she had been directly discriminated against and harassed on the ground of religion and that her beliefs had resulted in her mistreatment.
The tribunal considered that it could distinguish this case from the earlier tribunal decisions of Forstater v CGD Europe and others ET/2200909/2019 and Mackereth v Department for Work and Pensions and another ET/1304602/18 because the employee’s beliefs in this case were not likely to result in discrimination against members of the trans community. In the Mackereth case, the tribunal held that a Christian doctor’s beliefs that God only created males and females and that a person cannot choose their gender, his lack of belief that an individual can be trans, and his conscientious objection to the concept of trans people, were views incompatible with human dignity which conflicted with the fundamental rights of others and so were not protected religious or philosophical beliefs under the Equality Act 2010. In the Forstater case, the tribunal held that similar beliefs held by a consultant were not worthy of respect in a democratic society and therefore failed the test in Nicholson (i.e. guidance as to what beliefs should be protected, such as genuinely held, a belief not an opinion or viewpoint, weighty and substantial aspect of human life and behaviour, have a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others).
The tribunal noted that those decisions were not binding on it and considered that it was a major consideration of the tribunal in both of those cases that the belief held could result in the claimant unlawfully discriminating against a trans person. The tribunal held that it “could see no reason why the belief professed by Mrs Higgs should necessarily result in unlawful action by her” and that “there was no reason to believe she would behave towards any person in a way such as to deliberately and gratuitously upset or offend them”.
Equality Act: Gender fluid employee awarded £180,000 in compensation following landmark discrimination case
In Taylor v Jaguar Land Rover Limited  UKET 1304471/2018, Ms Taylor was an engineer at Land Rover who underwent gender reassignment and became a gender fluid employee. Gender Reassignment is a protected characteristic under the Equality Act 2010. She was treated so badly as a result of this, she subsequently made claims of harassment, direct discrimination, victimisation, and constructive unfair dismissal against Land Rover.
In his judgment for the Claimant, Judge Hughes said it was appropriate
to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings. We are also minded to consider making recommendations in order to alleviate the claimant’s injury to feelings by ensuring the respondent takes positive steps to avoid this situation arising again. The claimant’s compensation shall be uplifted by 20% because of respondent’s complete failure to comply with the ACAS Code of Practice in relation to the claimant’s grievance about short term measures to assist her transitioning.Judge Hughes in Taylor v Jaguar Land Rover Limited  UKET 1304471/2018
On 2 October 2020, Ms Taylor was awarded £180,000 in compensation at a remedy hearing following the judgment where it was held that gender fluid and non-binary people were protected from discrimination in the workplace under the Equality Act 2010. Jaguar Land Rover has apologised to Ms Taylor and stated that it will use the outcome to inform its diversity and inclusion strategy.
Whistleblowing: Imposing new contract was a one-off act, not an act extending over a period
In Ikejiaku v British Institute of Technology Ltd  UKEAT/0243/19 the EAT has upheld a tribunal’s finding that imposing a new contract on a senior lecturer following a protected disclosure he had made about suspected tax evasion was a “one-off” act with continuing consequences, rather than an act extending over a period. This meant that time started to run on the whistleblowing detriment claim at the point when the contract was imposed, not when the lecturer was dismissed. The EAT considered the authorities on what constitutes a continuing act, which showed that a typical, but not exhaustive, example is where the employer’s act constitutes a policy or rule. It concluded that the “act” in the present case did not constitute a policy or rule, nor was there any basis for concluding that it was an act “extend[ing] over a period” under section 48(4)(a) of the Employment Rights Act 1996.
However, the EAT allowed an appeal against the tribunal’s finding that the lecturer was not entitled to an uplift on the compensatory award for an automatic unfair dismissal claim, because disciplinary procedures, both generally and those contained in the ACAS Code of Practice on Disciplinary and Grievance Procedures, have no application to a dismissal on the ground of a protected disclosure. While the tribunal had been correct insofar as the application for an uplift related to disciplinary procedures, on a fair reading the application also extended to the grievance section of the ACAS Code, which refers to “concerns, problems or complaints” raised by employees. The employer had accepted that a protected disclosure made the day before dismissal fell into this category and so potentially engaged the provisions of section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.
COVID-19: New regulations make self-isolation legal requirement and introduce fines
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (SI 2020/1045) came into force on 28 September. The Regulations (which only apply in England) require anyone who has tested positive for COVID-19, or has been officially notified by NHS Test and Trace that they have been in contact with someone who has, to self-isolate for ten or 14 days respectively.
Self-isolating workers (including agency workers) who are due to go into work must notify their employer (or the employment business or client in the case of an agency worker) that they are required to self-isolate, as soon as reasonably practicable and not later than their next working day. In the case of agency workers, the recipient of the notification must inform others in the agency chain.
Where an employer of a self-isolating worker or self-isolating agency worker is aware of the worker’s requirement to self-isolate, they must not knowingly allow them to come into work.
Anyone who unreasonably fails to self-isolate is liable to be fined between £1,000 and £10,000 for repeat offences and serious breaches. Employers also risk the same level of fines where they knowingly allow self-isolating staff to come to work without reasonable excuse.
COVID-19: Two-thirds of employers see rising interest in flexible working from male employees and better relationships all round
Two-thirds of employers have noticed a growing interest in flexible working from their male employees since the beginning of the COVID-19 pandemic. This is according to a poll conducted by Working Families, which collected data from a small sample of 26 UK employers in September 2020. Experts say that increased homeworking during the pandemic may have reduced the negative stigma sometimes associated with men requesting less conventional, flexible working arrangements.
The data also suggests a longer-term shift in working practices, with more employees likely to be working flexibly or remotely for at least part of their working week, even after the pandemic has ended. The vast majority of employers also found that productivity had either remained at the same level or even improved with employees working from home. All of the employers found that relationships had improved with employees following lockdown as they now had a better understanding of their employees’ lives. In addition, all employers had offered employees with children the opportunity to work from home and flex their hours, as well as offering wellbeing support, paid leave, acceptance of children appearing on video calls, and changed deadlines and objectives to reflect caring responsibilities. It seems there can be a positive stance to be found out of these tough times, after all.
HR Guidance: CIPD and EHRC publish guide on supporting employees suffering domestic abuse
On 29 September 2020, the CIPD and EHRC published ‘Managing and supporting employees experiencing domestic abuse: a guide for employers’. The guide recommends that employers have a clear policy in place to support employees and a framework of support made up of four steps: recognise the problem, respond appropriately to disclosure, provide support and refer to the appropriate help. It calls for an empathetic, non-judgmental approach and flexibility (for example in working hours or concerning work tasks) as two key areas for employers to focus on. In particular, as many more people are working from home as a result of the COVID-19 pandemic and related restrictions, employers will need to consider how to maintain support when escape routes or time apart from an abuser may be dramatically curtailed.
The guide notes that it is not for employers to solve the problem, but they should enable their employees to access professional support, whether in the form of legal or financial advice, housing support, counselling or arranging childcare. It calls for employers to provide paid leave for those struggling to do their work or who need to access essential services. The guide addresses the need for open workplace cultures to break the silence around domestic abuse and for roles and responsibilities, such as those of HR and line management, to be clear when it comes to providing support.
On 9 June 2020, BEIS launched a review of how employers and the government could better support domestic abuse survivors in the workplace. Submissions were required by 9 September 2020 and the review is expected to report by the end of 2020.
Gender Pay Gap: UK Gender Pay Gap legislation much less ”robust” than in other countries, report finds
A report entitled ‘Gender Pay Gap Reporting: a comparative analysis‘ has been published by the Fawcett Society and the Global Institute for Women’s Leadership at King’s College London, which analysed the gender pay gap reporting legislation of ten countries. The report has revealed that the UK is “unique in its light-touch approach” to tackling the gender pay gap. In particular, the related research highlighted the UK’s failure to require private employers to produce action plans for reducing their gender pay gap, with only one other country, Austria, also not requiring this.
Interestingly, the report placed the UK ahead of its peers in terms of transparency and compliance; in 2019, 100% of eligible employers reported their statistics. However, the report did call for the pay gap reporting requirement currently applicable in England, Scotland and Wales to be extended beyond companies with 250 employees or more.
Equality: The number of executive positions occupied by women remains “stubbornly low”
The ‘Female FTSE Board Report 2020’, published by Cranfield School of Management and EY, which looks at trends in female representation on FTSE 100 and FTSE 250 boards each year, has found that the record number of women on boards is failing to translate into genuine equality in senior roles. Despite significant progress in the number of non-executive directors on FTSE 100 boards (where women now account for a record 40.8% of non-executive directors), the increase in the number of executive positions being awarded to women remained “stubbornly low“. In June 2020, less than one in seven executive director roles (13.2%) were held by women, with women filling just five out of 100 chief executive roles. Women fared worse in the FTSE 250, where they held 11.3% of executive director roles.
The report warns that the COVID-19 pandemic threatens to reverse gender equality progress and notes that the unequal burden of care placed on working women during the lockdown was likely to exacerbate existing gender inequalities and the gender pay gap.
Anti-racism: MHFA England guidance on creating anti-racist workplaces published
Mental Health First Aid England (MHFA England) has collaborated with the Chartered Management Institute (CMI) and Business in the Community (BITC) to publish guidance as part of the ‘My Whole Self campaign’. The guidance promotes the mental health and wellbeing of People of Colour and Black people in the workplace through the creation of an anti-racist environment. The guidance provides practical advice on how organisations, managers and colleagues can be better allies to People of Colour and Black people.
Ethnic diversity: CBI sets new targets to increase racial and ethnic diversity while Legal & General use their vote to force boardroom change
On 12 October 2017, the Parker Review Committee published its final report into the ethnic diversity of UK boards. It recommended that there should be at least one racially and ethnically diverse director on each FTSE 100 board by 2021 and on each FTSE 250 board by 2024. On 5 February 2020, in an update report, the Committee noted that, while companies were not yet up to speed, there had been movement and it might still be possible to meet the targets.
On 1 October 2020, the CBI announced that at the end of October it will be launching ‘Change the Race Ratio’ campaign, a campaign to increase racial and ethnic participation in British businesses. The campaign will identify four Commitments to change which are to:
- Increase racial and ethnic diversity among board members by taking action to ensure that FTSE 100 companies have at least one racially and ethnically diverse board member by the end of 2021 and FTSE 250 companies do so by 2024.
- Increase racial and ethnic diversity in senior leadership by setting clear and stretching targets and publishing them within 12 months of making the commitment.
- Be transparent by publishing a clear action plan to achieve targets and sharing progress through Annual Reports or on company websites. This should include disclosing ethnicity pay gaps by 2022 at the latest.
- Create an inclusive culture through recruitment and talent development processes, fostering safe, open and transparent dialogue, provision of mentoring, support and sponsorship, working with a more diverse set of suppliers and partners (including minority owned businesses) and through data collection and analysis.
Following this announcement, in a letter to FTSE 100 companies, Legal & General Investment Management (LGIM), the UK’s biggest fund manager with a 2% to 3% stake in nearly every FTSE 100 listed company, has warned firms that there will be “voting and investment consequences” for companies who fail to diversify their senior leadership team by 2022. Currently, approximately 37% of FTSE 100 companies have all-white boards. LGIM wants all FTSE 100 boards to include at least one black, Asian or other minority ethnic (BAME) member by January 2022. If companies fail to meet that target, it has said that it would openly vote against the re-election of their chairperson or the head of their nomination committee.
Data Protection: H&M fined EUR35 million in Germany for GDPR breach after storing “extensive” employee data
On 2 October 2020, H&M received a fine of EUR35 million for monitoring and recording “extensive details” about hundreds of its employees in Nuremburg, in breach of the General Data Protection Regulation (GDPR). The Hamburg Commission for Data Protection and the Freedom of Information revealed that the information included details of absences for vacations and sick leave, symptoms of illness and diagnoses, family issues and religious beliefs.
The Commission found that the data was able to be read by up to 50 managers and that this data was used to “obtain a detailed profile of employees for measures and decisions regarding their employment“.
H&M has also agreed to pay out compensation to employees who worked at the Nuremburg site for at least a month since May 2018.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.
Employment Law Newsletter – January 2020
We give you a round up of some of the big issues of 2019 in employment law, and what to expect in 2020, including a brief look at what’s likely to be covered by the Employment Bill 2020 and what happens next when the UK leaves the EU.
What were the big issues in 2019?
Equality, sexual harassment and discrimination
Looking back over the course of 2019, in amongst the omnipresent Brexit headlines (we got a new prime minister and a Brexit date was finally agreed, let’s just leave that there for now), several linked issues kept arising. The #MeToo movement has put a spot light on the treatment of women in the workplace and so it is not surprising that the topics of equality, sexual harassment and sexual discrimination should have continued to surface. In June, The Women and Equalities Committee published a report on ‘The use of non-disclosure agreements in discrimination cases’ tackling the perceived ‘cover up’ culture, which was followed by the Law Society publishing NDA guidance summarising both the things employers cannot stop workers from doing and explaining the restrictions commonly imposed on workers prior to signing the NDA. The government responded that it would review this as well as opening a consultation to address sexual harassment in the workplace.
The government also produced ‘Gender equality at every stage: a roadmap for change’. The plan is to financially empower women from school to retirement, by including measures such as improved information for parents around family friendly entitlements. This seems much needed after UNICEF published a report last year showing the UK is one of worst countries in Europe for paid parental leave, and yet figures gathered by the ONS show the number of mothers in the workforce is up by 75%. The Gender Roadmap also includes a consultation on strengthening measures to tackle sexual harassment, and a review of the enforcement of the equal pay legislation and the effectiveness of the gender pay gap reporting system. In fact, the gender pay gap figures from 2019 (for 2018) show a widening gap in favour of men. Perhaps naming and shaming is simply not enough, who would have guessed that?
Meanwhile ACAS produced guidance for employers on the sensitive handling of menopause symptoms whilst at work. The government also backed a ‘Lead the Change’ board which was set up to encourage business leaders to promote diversity and inclusion – it is an independent review board to ensure that talented women at the top of business are recognised, promoted and rewarded.
Mental Health and Stress
Quite rightly, mental health and stress are key areas that are really starting to occupy people’s focus, after all, an unhealthy workforce leads to sickness, absence, low morale, and inefficiency. In July, the government launched a consultation entitled ‘Health is everyone’s business: proposals for reducing ill health-related job loss.’ There were various reports published in 2019 looking at mental health: the CIPD reported on the increasing number of stress-related absences from work; Nuffield reported on the impact of flexible working and working from home on workers’ health and how it should be carefully managed; and a TUC report that showed that Britons have some of the longest working hours in Europe.
Modern working practices
In the gig economy and with more focus on mental health and family life, the way we work is changing rapidly, with the CV-Library reporting last year that the number of remote workers has doubled in the last 4 years, which is challenging the government to keep pace. In 2018, the Supreme Court finally ruled the Pimlico plumbers were workers rather than independent contractors. Having received that decision, one of them made a claim to the tribunal for holiday pay, only to be told it was out of time, however given he didn’t know at the time he was entitled to it, he will likely be appealing this decision. After a number of holiday pay dispute cases in recent years, BEIS published online guidance and a calculator to help calculate holiday pay for workers whose hours or pay are not fixed. Meanwhile, the government seems to be trying to clamp down on the tax aspects of flexible working arrangements by announcing changes to the so-called ‘IR35 rules’ (those which affect the private sector are due in April 2020) concerning those individuals who provide services to clients via a service company. Whilst this may indeed lead to an increase in income tax and National Insurance payments for the government, it may simply lead to more inventive ways to get around the tax rules, whilst the tribunals and courts are left to battle it out over the true meaning of what constitutes a worker, an employee or an independent contractor.
What should we expect in 2020?
Employment Bill 2019-20
This is expected to apply in the main to England, Wales and Scotland and include the following measures:
- A single enforcement body for the labour market. As recommended by the Good Work Plan, a single enforcement agency to be set up dealing with non-compliance in the labour market, to replace the enforcement functions of the Employment Agency Standards Inspectorate (EASI), the Gangmasters and Labour Abuse Authority (GLAA), HM Revenue and Customs (HMRC) and the Health and Safety Executive (HSE). A consultation on these proposals closed on 6 October 2019; a response is awaited.
- Protecting tips and service charges for workers. Employers to be required to pass on all tips and service charges to workers and, supported by a statutory Code of Practice, to ensure that tips would be distributed on a fair and transparent basis.
- The right to request a more predictable contract. The government previously indicated its intention to legislate to introduce a right for all workers to request a more predictable and stable contract after 26 weeks’ service as part of the Good Work.
- Extending redundancy protection to prevent pregnancy and maternity discrimination. The Pregnancy and Maternity (Redundancy Protection) Bill 2017-19 was not granted Royal Assent in the 2017-19 Parliamentary session. The Bill was designed to extend the existing redundancy protection, effectively making it harder to make employees redundant during pregnancy and afterwards, until six months after they have returned from maternity leave. The Bill was believed to have cross-party support and the government is now intending to implement this measure through the Employment Bill.
- Extended leave for neonatal care. The government’s consultation on a new right to neonatal leave and pay, to support parents of premature or sick babies, closed on 11 October 2019; a response is awaited.
- A week’s leave for unpaid carers. This proposal was made in the Conservative Party’s election manifesto.
- Making flexible working the default. As set out in the Conservative Party’s election manifesto, the government intends, subject to consultation, to make flexible working the default position unless an employer has a good reason.
- Brexit-related provisions. The Employment Bill may contain provisions designed to safeguard workers’ rights derived from European legislation, after similar provisions were removed from the European Union (Withdrawal Agreement) Act 2020.
The Good Work Plan
A number of changes set out in the government’s Good Work Plan, published in December 2018, will come into effect on 6 April 2020:
- The right to a written statement of terms for all workers (not just employees) on or before the first day of employment.
- Additional information will need to be included in written statements of terms for employees and workers, including information on the length of time a job is expected to last, the notice period, eligibility for sick leave and pay, other rights to leave, any probationary period, all pay and benefits, and specific days and times of work.
- The removal of the “Swedish derogation” in the Agency Workers Regulations 2010, which allows employment businesses to avoid pay parity between agency workers and comparable direct employees where the agency workers receive pay between assignments.
- The introduction of a Key Information document for agency work-seekers, including information on the type of contract, the minimum expected rate of pay, how they will be paid and by whom.
- The threshold to request workplace information and consultation arrangements under the Information and Consultation of Employees Regulations 2004 (SI 2004/3426) will be lowered from 10% to 2% of employees, subject to the existing minimum of 15 employees.
- The increase of the reference period for determining an average week’s pay (for the purposes of calculating holiday pay) from 12 weeks to 52 weeks.
The Conservatives’ manifesto did not mention resolving the complex issue of employment status and there has not yet been any response to the 2018 consultation on this, suggesting that it is not a high priority for the current government.
Off-payroll working rules
In order to address non-compliance with IR35 in the private sector, the government confirmed at the Autumn 2018 Budget that the off-payroll working rules would be extended to the private sector from 6 April 2020, but that small entities would be excluded from the scope of the new rules. This means that payments to workers supplied to large and medium-sized companies by personal service companies will be treated as payments of employment income and so subject to income tax and NICs. This shifts responsibility for tax compliance from the personal service company to the client or intermediary. However, as the legislation has not yet been passed, this measure remains subject to any further changes. During the election campaign, Sajid Javid, the Chancellor of the Exchequer, spoke about wanting to ensure that the proposed changes to off-payroll working were “right to take forward”. Some have suggested that there could therefore be a delay in implementation.
Taxation of termination payments
From 6 April 2020 all termination payments above £30,000 will be subject to employer’s NICs. This measure is implemented in the National Insurance Contributions (Termination Awards and Sporting Testimonials) Act 2019 which received Royal Assent on 24 July 2019.
Parental bereavement (leave and pay)
The Parental Bereavement (Leave and Pay) Act 2018, which entitles all working parents to two weeks’ paid statutory leave if they lose a child under the age of 18 (including a still birth after 24 weeks of pregnancy), is expected to finally come into force in April 2020, after a long wait. Secondary legislation is also awaited to implement the details of the scheme.
In July 2019, the government published its proposals to prevent the misuse of confidentiality clauses or non-disclosure agreements (NDAs) in the settlement of workplace harassment or discrimination complaints. The government reiterated that confidentiality clauses can serve a legitimate purpose in both employment contracts and settlement agreements but confirmed its intention to bring forward new legislation “when Parliamentary time allows”.
The government has also stated that new requirements will be introduced for the limitations of a confidentiality clause to be clear to those signing them, as well as for mandatory independent legal advice on a settlement agreement to include the limitations of any confidentiality clause. Clauses that do not follow these new rules will be void.
In July 2019, the government launched a consultation on measures to address sexual harassment in the workplace. The consultation includes proposals such as introducing a mandatory duty on employers to prevent harassment in the workplace and increasing the time limit for bringing a discrimination claim from three to six months. The Equality and Human Rights Commission (EHRC) statutory code of practice on preventing sexual harassment in the workplace is also awaited and may well be published in 2020.
Ethnicity pay reporting
In 2018, the government launched a series of measures to tackle barriers facing ethnic minorities in the workplace, including a consultation on the introduction of mandatory ethnicity pay reporting, based on the model of mandatory gender pay gap reporting. A response to this consultation is still awaited and as there was no mention of this measure in the recent Queen’s Speech, it may be that this is no longer a priority for the current government. It is notable that the Conservative Party’s recent manifesto included a pledge to further investigate pay disparity in the UK, yet this manifesto did not refer to the possibility of introducing mandatory ethnic pay reporting.
The Conservative Party pledged in its manifesto to increase the National Living Wage (NLW) to two-thirds of average earnings (£10.50 an hour) by 2024 and to extend the NLW to over-21s.
On 12 and 13 February 2020 the Supreme Court will hear the appeal in Royal Mencap Society v Tomlinson-Blake, considering whether the correct approach to determine whether employees, who sleep-in in order to carry out duties if required, engage in “time work” for the full duration of the night shift, determining if they are therefore only entitled to the national minimum wage when awake for the purposes of working.
On 22 and 23 July 2020 the Supreme Court will hear the appeal in Uber BV and others v Aslam and others. The court will decide whether to uphold the Court of Appeal’s majority finding that Uber drivers are workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.
We are currently awaiting the judgment in Various claimants v Wm Morrisons Supermarket which was heard in the Supreme Court on 6 and 7 November 2019. The court considered the High Court’s ruling that Morrisons are vicariously liable for a data leak by one of their employees. The breach resulted in around 5000 staff members having their personal data stolen and shared with the public.
A hearing date for the Supreme Court hearing of Ali v Capita Customer Management Ltd; Hextall v Chief Constable of Leicestershire Police is currently awaited. The court will consider whether it was direct or indirect sex discrimination, or a breach of the equal pay sex equality clause, for two employers to fail to pay two male employees enhanced shared parental pay.
The hearing date for another Supreme Court hearing, Asda v Brierley, is also awaited. The court will decide whether workers in retail stores were employed under comparable terms and conditions to those working in separate distribution depots for the purposes of equal pay claims under the Equality Act 2010 and the Equal Pay Act 1970.
This will come as no surprise to you, but, yes, we are expecting the UK to leave the European Union at 11.00 pm (UK time) on 31 January 2020. Whilst we cannot be sure what the long-term impact of Brexit on employment law will be, there are unlikely to be any significant changes happening in 2020. The UK will be in a post-Brexit transition period and most EU law (including as amended or supplemented) will continue to apply to the UK.
The European Union (Withdrawal Agreement) Act 2020 was recently given royal assent, implementing the withdrawal agreement into UK law. Under the withdrawal agreement, a post-Brexit transition period will run from exit day until 31 December 2020, during which time the UK will be treated for most purposes as if it were still an EU member state, and most EU law (including as amended or supplemented) will continue to apply to the UK. The transition period could be extended for up to one or two years, but only if the joint UK-EU committee agrees to an extension before 11.00 pm (UK time) on 30 June 2020. The Act includes a provision that prohibits the UK government from agreeing in the joint committee to an extension.
In the unlikely event that the UK and the EU do not conclude a withdrawal agreement by exit day (and there is no further extension of the Article 50 period, and the Article 50 withdrawal notice is not revoked), the UK will leave the EU on exit day with no agreement to govern the terms of withdrawal, and no transition period.
Once the UK leaves the EU, with or without a deal, formal negotiations on the future UK-EU relationship can start under Article 218 of the Treaty on the Functioning of the European Union. (Trade agreements are also governed by Article 207.) Assuming the UK and the EU agree a political declaration before withdrawal (in tandem with the withdrawal agreement), this declaration will form the basis for their post-Brexit negotiations on the future relationship. If the UK leaves the EU with a withdrawal agreement and transition period, the future relationship would ideally come into effect at the end of the transition period to minimise disruption, as many aspects of a no-deal scenario would again arise if relevant future relationship agreements are not in force by the end of the transition period.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.
Employment Law Newsletter – April 2019
- Minimum Wage: Is being on-call considered ‘time-work’, and therefore minimum wage applies?
- Contract of Employment: Variation of a discretionary bonus
- Vicarious liability: Employer not liable for Christmas party injury
- Tribunal Procedure: List of issues not pursued by claimant
- Long-term disability: Employee PHI benefits apply to returning to same job
- Unfair Dismissal: Not unfair to dismiss after tribunal and disciplinary
- TUC Survey: Britons work longer than rest of Europe
- HMRC: New guidance published regarding change to IR35 rules
- Mental Health at Work: New CIPD report shows workers increasingly absent from work due to stress
- Tribunals: Modernisation plan from 2019-20 to reform tribunals
- Equality: New GPG figures show gap is actually widening in favour of men
Minimum Wage: Is being on-call considered ‘time-work’, and therefore minimum wage applies?
This was the question before the EAT in Frudd & Frudd v The Partington Group Ltd UKEAT/0240/18/OO. The Claimants, Mr and Mrs Frudd, were a warden/receptionist team who worked at a caravan site. During the open season they worked shifts which finished between 4.30pm and 8pm and were expected to be on-call afterwards on two or three nights a week until 8am the following morning. The Claimants argued that whilst on-call they were working on “time work” and so entitled to be paid the National Minimum Wage. According to the legislation, workers paid according to the number of hours they are at work are classed as doing ‘time work’. For these workers, the average hourly pay has to be at least the National Minimum Wage, worked out over the period each pay packet covers – so for a worker who gets paid once a month, this period will be 1 month. (The sleep-in exception in the Mencap case did not apply because this was not a sleep-in situation.)
Although the Claimants had sought a finding in respect of the whole time on call, the Employment Judge made a distinction. He found that the night period (10pm – 7am) was not time work. The Claimants appealed the rest of the time (from the end of the shift until 10pm). The Employment Judge found that for this period they were working on time work because their responsibilities included showing round prospective customers and welcoming late arrivals. They were therefore entitled to be paid the NMW for that period.
The Claimants were not, however, required to carry out that work after 10pm, unless they were called out for an emergency for which they were paid. After 10pm, they were therefore not working on time work unless called out, and so were merely available for work, and were not entitled to be paid whilst merely on-call.
Contract of Employment: Variation of a discretionary bonus
In Bluestones Medical Recruitment Ltd v Swinnerton UKEAT/0197/18/BA Mr Swinnerton made a claim for unlawful deduction from wages after he was not paid a bonus he claimed was due to him. His contract stated any bonus was discretionary but he claimed that when he had been promoted to General Manager there had been a further agreement. He was to be paid a monthly bonus based on the company’s profits and he would become a shareholder. Bluestones argued that the bonus remained discretionary as once Mr Swinnerton became a shareholding director he was to be paid the money by way of a dividend. This had not yet occurred and so the money was to be advanced by way of Director’s loan, which he was to repay from his dividends. However, Mr Swinnerton was suspended, Bluestones stopped paying his bonuses and he was then dismissed, all prior to him becoming a shareholder.
At first instance the tribunal concluded this was an unlawful deduction of wages. However, the EAT found the tribunal hadn’t adequately identified the legal mechanism through which the contract was changed or what the new contract required. This failure also meant it was not possible to conclude whether the payments should be classified as loans rather than deductions from wages. The EAT therefore remitted the case to a fresh tribunal.
Vicarious liability: Employer not liable for Christmas party injury
In Shelbourne v Cancer Research UK  EWHC 842 (QB), whilst at a work Christmas party, one attendee had attempted to lift another (the Claimant, an employee) on the dance floor but dropped her, causing her a serious back injury. The Claimant took the matter to the County Court, claiming the employer (CRUK) was vicariously liable for the actions of the attendee (Robert Beilik, a visiting scientist)because it was a work event. The person who had organised the event for the employer was Mr Hadfield, and he had carried out a risk assessment to cover all the foreseeable hazards of holding an event at the premises (which included laboratories). Mr Beilik had picked up several women that night, prior to this incident, but had put them down again straight away and no one had reported any concerns about him.
The County Court held that the employer was not negligent and not vicariously liable for the actions of Mr Beilik. The Claimant appealed. The High Court considered the nature of the occasion and agreed with the County Court Recorder. It was not wrong to find that CRUK took reasonable steps in the planning and operation of the party. No duty of care was breached. The claim for negligence was, accordingly, not made out. Furthermore, he was right to find that Mr Beilik’s field of activities was his research work at CRUK and that this field was not sufficiently connected with what happened at the party as to give rise to vicarious liability.
Tribunal Procedure: List of issues not pursued by claimant
In Kouchalieva v London Borough of Tower Hamlets UKEAT/0188/18/JOJ the EAT had to consider whether the tribunal had made an error or not. The Claimant, representing herself, had brought claims against her former employers, the London Borough of Tower Hamlets, of unfair dismissal and disability discrimination. In some cases, the employment tribunal will order that a preliminary hearing takes place before the main employment tribunal hearing, as a way of helping the judge understand the case and make arrangements for the main hearing. These are usually used when the case is complicated or involves discrimination, as it was here. At the Preliminary Hearing a list of issues was agreed between the parties but, at the final hearing, the unrepresented Claimant did not lead any evidence in relation to a number of issues in that list. In the judgment, the tribunal noted that they had not been pursued, and on finding they were now out of time, declined to extend time.
At appeal, the Claimant’s counsel argued that the tribunal erred in law in failing to address the agreed list of issues because the tribunal has as its overriding objective to ensure that the parties were on an equal footing, so far as is practicable. He suggested that if the tribunal realises that an unrepresented Claimant has failed to address a particular issue, the ET should raise the matter with the Claimant and ask them whether they intend to abandon the claim. He also suggested that if the unrepresented Claimant has failed to address a particular issue then the Respondent should also bring the matter to the Claimant’s attention, and to the ET’s if the matter has not been remedied satisfactorily.However, the Respondent argued that the list of issues is a case management tool, not a pleading, and the tribunal was under no duty to raise specifically with a litigant every issue which the litigant has not pursued during the hearing.
The EAT concluded that the tribunal was not under a duty to draw the neglected issues to the Claimant’s attention. It could not treat the issues as having been withdrawn, but it could take the failure to actively pursue the issues into account in exercising its discretion as to whether to extend the time limit. It found the issues the Claimant had not actively pursued to have been out of time.
Long-term disability: Employee PHI benefits apply to returning to same job
In ICTS (UK) Limited v Visram UKEAT/0133/18 Mr Visram worked as an International Security Co-ordinator but went on sick leave with work-related stress and depression. The Claimant became entitled to Long Term Disability Benefit (“LTDB” aka permanent health insurance) under his employment after 26 weeks absence. The term of the insurance booklet stated the LTDB would be paid “…until the earlier date of your return to work, death or retirement”. After being absent from work for nearly two years the Respondent dismissed him with pay in lieu of notice, and continued to pay the LTDB until the situation had been clarified.
The issue at hand was whether construction of the phrase “return to work” meant return to work in the Claimant’s former role with the Respondent or whether it meant any suitable work which the Claimant was able to carry out whether for the Respondent or otherwise. The EAT ruled that the words “return to work” in the policy did not mean return to full-time work with any employer, but specifically the employer that he had worked for prior to going on sick leave and doing the same work. Had he not been dismissed he would have continued to be entitled to receive the benefits since he was unable to return to the same work he had been doing when he became unwell. It also upheld the tribunal’s finding that the dismissal constituted discrimination arising from disability and was unfair. Therefore he was entitled to be compensated for loss of benefits until death or retirement. The claim remitted to the tribunal for determining compensation for loss of long term and associated benefits and the issue of mitigation. (His claim for aggravated damages also remitted for determination.)
Unfair Dismissal: Not unfair to dismiss after tribunal and disciplinary
In Radia v Jeffries International Ltd UKEAT/0123/18/JOJ, a Managing Director of a FCA-regulated financial services company had taken his employer to tribunal over two claims – one for disability discrimination and a later claim of victimisation. The first tribunal found that “in several areas of his evidence the Claimant had not told the truth or had misled the tribunal and had given untrue evidence”, and additionally, they had also noted that “the Claimant’s behaviour as a regulated person would be a matter of grave concern”. Furthermore they found the employer’s witnesses credible but did not think the same of the Claimant. On receiving the judgment, the employer suspended him on full pay pending a disciplinary, but without holding an investigation. The Claimant did not appeal this judgment.At the disciplinary meeting, the Claimant disputed the tribunal’s findings against him but did not deal with the allegations themselves. For all these reasons, combined with his behaviour being “not compatible with his being a fit and proper person for the purposes of the FCA rules”, the Respondent dismissed the Claimant.
The second tribunal found in favour of the employer – it had acted reasonably in treating the findings of the first tribunal as a starting point without further investigation at that stage and then seeking the Claimant’s representations about those findings.
The Claimant issued his third claim to the tribunal complaining that his suspension, dismissal, and the Respondent’s refusal to hold the hearing of his appeal against his dismissal amounted to whistleblowing detriment, victimisation and unfair dismissal. The tribunal found in favour of the employer, that the dismissal had been fair.
On appeal, the EAT held that there was no error of law in the tribunal finding the dismissal fair – for dismissing him without holding an investigation meeting. The question was whether the decision was within the range of reasonable responses. The two stages of investigation and disciplinary meetings are not required by statute or even the ACAS Code, and therefore the tribunal was entitled to reach this conclusion in this case. However, the employer not offering him an appeal did make the dismissal unfair – the tribunal had not made sufficient findings to justify its decision that having no appeal would have made no difference.
TUC Survey: Britons work longer than rest of Europe
The TUC has recently published results of a survey they have conducted into working hours in 2018. The interesting results are that the British work an average of 42 hours a week (which equates to two and half weeks a year), and this is almost two hours longer than the European average (40.2) and five hours more than the Danes, who racked up a mere 37.7 hours a week.
Britain’s “long-hours culture” is not having a positive impact on productivity. In similar economies to ours, workers are much more productive for each hour they work.” And that “the long hours worked by Britons are depriving them of a fulfilled personal life,says the TUC.
Can this be true? With the Danes dominating the World Happiness Report rankings year after year, perhaps this is food for thought?
HMRC: New guidance published regarding change to IR35 rules
IR35 is the name given to tax legislation that is aimed at identifying individuals who supply services to clients via their own company and who are avoiding paying the full amount of tax that they should be. The rules have been changing for a while, with the most recent changes concerning those working in the public sector, but new rules regarding off-payroll working in the private sector are due to come into effect on 6 April 2020.
HMRC has published new guidance, which contains four key steps, to assist organisations in dealing with this as it will be responsibility of the organisations receiving the individual’s services to decide whether the amended off-payroll working rules apply or not.
Tribunals: Modernisation plan from 2019-20 to reform tribunals
In January 2019, Sir Ernest Ryder, Senior President of the Tribunals, published a report entitled ‘The Modernisation of Tribunals 2018’ setting out his proposed strategy for the reform of the whole tribunal system, including the immigration and employment tribunals. Following on from that, he has now published his Innovation Plan for 2019-2020, which sets out various aims and objectives to reform the employment tribunals. It includes the introduction of digital case management, recording of hearings and digital evidence presentation and the ability to use live video evidence.
Mental Health at Work: New CIPD report shows workers increasingly absent from work due to stress
The CIPD and Simplyhealth recently published the results of their nineteenth annual survey which shows that nearly two-fifths of UK businesses (37%) have seen an increase in stress-related absence over the last year. The survey is designed to explore the trends and practices in health, well-being and absence management in UK workplaces. The survey was completed in November 2018 by more than 1,000 professionals, covering 3.2 million employees across the UK. According to the report, heavy workloads and poor management style are to blame.
Overall, the findings reflect employers’ growing recognition of their critical role in improving the health of the workforce. But the survey highlights some cause for concern, including an increase in stress-related absence and a lack of support for managers, who are increasingly expected to take responsibility for their team’s well-beingreports the CIPD.
CIPD are trying to bring this to the attention of employers so that they invest in more training and development for managers. To this end they have published some top tips to support managers to minimise stress in their teams and also have a useful management development factsheet for developing people management skills.
Equality: New GPG figures show gap is actually widening in favour of men
The deadline for large private sector organisations to publish their gender pay gap figures recently passed and it seems that producing this information is, so far, not having the desired effect. Nearly ten and a half thousand companies filed their data on time, but a worrying 45% of these show an increase in the gap between the pay of men and women in the last year.
The way the figures are reported is important to understand – the median pay gap and mean pay gap are ways of expressing two different data sets. The median pay gap is the difference in pay between the middle-ranking woman and the middle-ranking man whereas the mean pay gap is the difference between a company’s total wage spend-per-woman and its total spend-per-man. Whilst gender pay gap (GPG) is not the same as unequal pay (which is illegal) this is certainly a matter of inequality. There are other matters which influence the GPG such as having fewer women in senior or highly paid roles, more women in part-time jobs or lower paid roles, fewer women generally in certain industries (particularly where STEM subjects are necessary).
Some of the biggest offenders where the women’s median hourly wage was lower than the men’s were Easyjet (47.9 %) and Independent Vetcare (48.3%), whilst Kwik Fit, Interserve FS and car retailer Inchape showed the biggest increases in their pay gaps. Overall, the figures tells us that the median GPG has reduced marginally by 0.1% to 9.6% in favour of men. There is clearly plenty more to be done. Frances O’Grady, General Secretary of the TUC, said that employers are not making significant changes to tackle the disparity that exists. Indeed, there is concern about the attitude of employers who may be treating the government’s requirement to publish gender pay gap figures as an exercise in compliance, or even as a marketing strategy. There has been a suggestion that employers should publish action plans meaning they will have to explain their figures and examine and target where the inequalities exist in order to make meaningful change.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – March 2019
- 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.