Employment Law Update 2016

(with a twist of ‘Brexit’)James Willis

Head of Employment Law

What are we going to cover? Holiday pay

Disciplinary investigations

Discrimination law round-up

Apprenticeship levy

The ‘Brexit’ twist

Restrictive covenants

In the news…

Rate changes

Holiday pay

Holiday pay Lock v British Gas (Court of Appeal)

Holiday pay and European jurisprudence (say what?!)

The central issue: Are Working Time Regs 1998 compatible with EU directive and ECJ

decisions? If Yes? Workers get ‘normal remuneration’ when on holiday

Including commission, overtime pay etc If no? Erm…well!

Court of Appeal said … “YES!”Next stop the Supreme Court?

Holiday pay – other issues 3 types of overtime: contractual, non-guaranteed, voluntary

Patterson v Castlereagh Borough Council Voluntary overtime may need to be factored in

Brettle v Dudley MBC Workers regularly worked voluntary overtime Council paid holiday pay at basic rate only ET said regular voluntary overtime was part of ‘normal’ pay

How ‘regular’ does the overtime need to be? We don’t know

Disciplinary investigations

The role of HR Ramphal v Department for Transport

HR went beyond advising on process/procedure/consistency ‘Improper influence’ over culpability and sanction

Dronsfield v University of Reading Professor dismissed for sexual relationship w/ student ET said dismissal was fair EAT overruled the decision Investigatory report heavily influenced and amended by HR/legal Standards of objective fairness were compromised ET failed to consider why investigator changed his view

NB Employment Tribunal disclosure obligations!

Barbulescu v Romania The facts

Mr B used ‘Yahoo! Messenger’ to communicate w/ customers Account for business purposes only (strict rule) Employer monitored account; Mr B sending personal messages Employer dismissed Mr B Mr B argued human rights breach (right to private

life/correspondence)

ECHR said No breach Employer acted reasonably, checking Mr B doing his work

Monitoring in the workplace Establish clear policies:

permitted usage of IT systems Level of and reasons for monitoring

You need: good justification to use least invasive method

Consent? not as significant as you might think

Read Part 3 of The Employment Practices Code (ICO)

Discrimination law round-up

Disability discrimination Griffiths v S/S for Work and Pensions

Ms G suffered from post-viral fatigue and fibromyalgia Should DWP adjust/disapply ‘trigger points’ within absence management

policy ET and EAT said no Court of Appeal said could amount to a failure to make reasonable

adjustment Disabled employees could end up worse off as a result of the ‘triggers’

(more likely to be off sick)

Consider how you apply absence management procedures to disabled workers Don’t be too mechanistic!

Other reasonable adjustments Carreras v United First Partners Research (EAT)

Disabled employee disadvantaged because of expectation that employees work late

Working late doesn’t have to be compulsory to cause disadvantage

G4S Cash Solutions (UK) Ltd v Powell Mr P moved from ‘Engineer’ to ‘Key Runner’ Mr P objected to 10% pay cut and was dismissed EAT said obligation to protect pay rate could be reasonable

adjustment Additional cost for employer? So what?

Other discrimination cases Wasteney v East London NHS Trust

Ms W tried to ‘convert’ junior e’ee (prayer, laying on of hands, invites to church) E’ee complained; Ms W given formal warning Ms W brought claims for religious discrimination/harassment NHS acted lawfully; Ms W overstepped the mark (ET/EAT)

Bougnaoui and another v Micropole etc (ECJ) Advocate General in Belgian case said you can ban headscarves (religious neutrality

etc) AG in Bougnaoui case said blanket ban is direct religious discrimination European Court of Justice (ECJ) will decide which AG is right

Dress codes, high heels etc.

Other discrimination cases

Childcare Vouchers Are they ‘remuneration’ or a ‘non-cash’ benefit? HMRC guidance says they’re a ‘non-cash’ benefit

Peninsula Business Services Ltd v Donaldson EAT said vouchers received under ‘salary sacrifice’ are still remuneration Employer not required to provide them during maternity leave

Good news? Depends on your point of view N.B. ‘Salary sacrifice’ OR additional benefit

Other discrimination cases

Ashers Baking Company v Gareth Lee (Court of Appeal (NI)) Mr Lee requested a cake:

picture of ‘Bert and Ernie’ “Support Gay Marriage” caption

ABC refused: right to refrain from supporting a ‘political view’ at odds with religious views

Unlawful sexual orientation discrimination

N.B. B&B cases

Equal pay and gender pay reporting Men and women should be paid the same for:

like work work of equal value work rated as equivalent

Often seen as a public sector problem

Brierley and ors v Asda Stores Ltd

Current gender pay gap (according to TUC website) 18% (Private sector) 11% (Public sector)

Equal pay and gender pay reporting Compulsory gender pay reporting?

For private sector e’ers with 250 or more e’ees ‘Data snapshot’ in April 2017 Publish data by April 2018

Information to be published: difference in 'mean pay' between M and F e’ees difference in 'median pay' between M and F e’ees difference in 'mean bonus pay' between M and F e’ees proportion of M and F employees who received 'bonus pay' number of M and F e’ees employed in 'quartile pay bands‘

Employers can include information providing context/explanation

Equal pay and gender pay reporting Data must be:

‘signed off’ by senior person published on the employer's website (and retained there for 3 years) uploaded to government website

Process needs to be repeated annually

No civil/criminal sanctions for non-compliance What about reputational issues? ‘Name and shame’?

Equal pay and gender pay reporting The positives:

Greater transparency Encourage employers to tackle pay inequality

The negatives What if you identify a big problem? Reputational damage Increased risk of claims

Apprenticeship levy

Apprenticeship Levy (April 2017)

You need to pay if you: operate in the UK

have an annual ‘pay bill’ of £3m+

‘Pay bill’ = total amount of earnings subject to Class 1 Secondary NICs

Levy = 0.5% of annual ‘pay bill’ (less £15,000 ‘levy allowance’)

Levy paid to HMRC via PAYE system

Once you’ve paid in, you can take out!

The ‘Brexit’ twist

Brexit – employment law issues Everything remains the same (for now)

Article 50 sparks a 2-year negotiation What deal will we strike? ‘Hard Brexit’, ‘Soft Brexit’

Changes to employment laws? Agency Workers Regs? Working Time Regs? TUPE? Repeal Equality Act 2010? (‘Lord’ Nigel Farage)

Cap on discrimination compensation?

Brexit – immigration law issues 2 million EU nationals working in UK

1 million British nationals living in EU

EU citizens in the UK? Law Society assumes they won’t be ‘sent home’ UK Govt. remains tight-lipped Arrived before or after vote? Requiring UK businesses to report % of non-British workers?

Uncertainty for businesses and workers

Brexit – immigration law issues Advice for your staff (UK-based)

Less than 5 years in UK - apply for a ‘registration certificate’ 5+ years working in UK - apply for permanent residence 6+ years working in UK (and got permanent residence) - apply for British Citizenship Get qualified?

Staff elsewhere in EU? Are you ‘Irish’? Or possibly even Scottish?

Recruiting EU citizens? Blanket ban - Direct discrimination Require indefinite right to live and work here - Indirect discrimination?

‘Right to work’

Take copies of appropriate documentation when recruiting

Look closely!

General presumption - if you make ‘in time’ application for new visa, you retain right to work until application decided

What if an employee loses right to work?

£20,000 fine for employing an illegal worker

Nayak v Royal Mail Group (EAT) Facts:

Mr N worked for Royal Mail 2010 – Mr N applied for student visa Application stalled following appeal Time passed; Royal Mail unclear about ‘right to work’ Mr N dismissed and brought unfair dismissal claim

Decision: If employee loses ‘right to work’, probably fair to dismiss ‘Genuine and reasonable’ belief in lack of ‘right to work’ (even if mistaken)

probably SOSR Royal Mail acted fairly and reasonably – repeated efforts to check status

Restrictive covenants

Bartholomews Agri Food v Thornton Contract contained 6-month post-termination restrictions

Employer promised to pay normal salary for duration of restrictions

High Court said restrictions unenforceable: too wide not limited to customers with whom he personally dealt made no difference that employer paid employee Contrary to public policy to allow 'purchase' of restraint of trade

NB. Government issued a ‘call for evidence’: Do post-termination restrictions stifle British innovation?

In the news…

The ‘Uber’ case Aslam and others v Uber BV (Employment Tribunal)

Uber drivers engaged on self-employed basis Drivers claim they are ‘workers’ If ‘workers’, they’re entitled to:

national minimum wage holiday pay

ET decided they are ‘workers’ Uber plan to appeal

Rate changes

Rate ‘changes’ in 2016 SMP, SAP, SPP remained at £139.58pw SSP remained at £88.45pw

National Living Wage in force since 1 April 2016 (£7.20 ph for 25 and overs)

Rising to about £7.50 in April 2017?

With effect from 1 October 2016: adult rate rose from £6.70 to £6.95 rate for 18 to 20 year olds rose from £5.30 to £5.55 rate for 16 to 17 year olds rose from £3.87 to £4.00 apprentice rate should rose from £3.30 to £3.40

Any questions?

James WillisHead of Employmentt: 01293 596931e: james.willis@stevensdrake.com