Employment

In this month’s Employment Law Journal, Downs’s Head of Immigration Samar Shams offers practical advice on GDPR compliance. The analysis covers immigration contexts including the resident labour market test and visa applications as well as right to work checks. The article is designed to support employers in this developing area of compliance.

As the temperatures set to reach record levels in the UK over the next week or so, there’s no doubt that many of us will be enjoying the great outdoors. But, what about those long office hours in stuffy, windowless buildings? Are employees entitled to go home if it is too hot? Do they have a “right” to air conditioning, for example?

The Home Office published a Statement of Intent on 21 June 2018 setting out the application processes EU nationals and their family members will have to undertake to stay in the UK beyond the post-Brexit transition period. The Statement does not indicate when exactly the application process will open, stating only ‘late 2018’. The settlement scheme will be introduced in phases, and will open fully from 30 March 2019. Subject to the outcome of ongoing negotiations, the UK proposes to extend the settlement scheme to EEA and Swiss citizens.

The Tech Nation (formerly Tech City) visa scheme has gradually become useful. The Tech Nation scheme falls under the Tier 1 (Exceptional Talent) visa category, for migrants with outstanding achievements or promise in their fields. During Tech Week , the Home Office published (another) Statement of Changes in the Immigration Rules. The changes take effect next month and include changes to the Tech Nation scheme which will be of interest to migrant techies.

Even those who are not football fans will probably be aware that the Football World Cup competition starts in Russia on 14 June. ACAS have produced some guidance to assist employers in dealing with the issues that are always thrown up by tournaments of this kind.

Tuesday 10th April represents National Equal Pay Day – and what better time to be talking about it than now? With the first phases of Gender Pay Gap reporting now in the news, the spotlight is firmly on businesses to account for their pay data.

The Equality and Human Rights Commission (EHRC) has published a report, Turning the tables: ending sexual harassment at work report recommending steps to strengthen protection for victims of sexual harassment, promoting transparency and placing a legal duty on employers to take effective steps to prevent sexual harassment. The report has also recommended an increase in compensation levels for victims where this duty has been breached.

Organisations that have not yet published their gender pay gap information by the deadline next week could face unlimited fines.

Author: Matthew Kilgannon

The Employment Tribunal (ET) is not known for making cost orders, in fact they are quite rare.

Specialist employment law Partner, Matthew Kilgannon, discusses last month’s first Employment Appeal Tribunal (EAT) decision on parity of terms for Agency workers.

Author: Matthew Kilgannon

Following the decision to remove fees in the Employment Tribunal (and our earlier article on the subject – available here), the Government has now launched the opening wave of its refund scheme.

Author: Nicola O'Dwyer

With an increase in the number of older women within the workplace, the menopause appears to becoming less of a taboo subject. This has also been assisted by the exposure that has been given to the subject of the menopause in the media.

Author: David Seals

In Officeserve Technologies Limited (in liquidation) and another v Anthony-Mike, the High Court held that a settlement agreement entered into between a company and one of its directors during the period between a winding up petition being presented and the making of the winding up order was void.

Author: David Seals

In Federatie Nederlanse Vakvereniging and others v Smallsteps BV (Case C-126/16), the European Court of Justice considered how the ARD applied to a pre-pack. The insolvent business consisted of 380 childcare centres employing 3,600 staff in Holland.

Author: Matthew Kilgannon

Background

It appears that, in the last few weeks the Southampton Employment Tribunal has agreed to grant a Claimant, an extension of time to bring her claims.

Author: David Seals

In BAE Systems (Operations) Limited –v- Konczak ("K") the Court of Appeal rejected the employer’s argument that an award of compensation of £360,178 in a discrimination claim was excessive.

Author: Emily Kidd

What are Employment Tribunals?

Most UK employment rights are enforceable through the Employment Tribunals. Employment Tribunals were originally set up so that the layperson could bring a claim in an informal setting which did not require them to have legal representation. Any legal costs were usually borne by each of the parties, unlike the civil courts where the losing party was usually ordered to pay both parties’ costs.

Author: Matthew Kilgannon

On 25 May 2018, the General Data Protection Regulation (GDPR) will replace the Data Protection Act. While the GDPR is a European Regulation, the UK Government has confirmed that the UK’s exit from the EU will not affect the commencement of the GDPR.

Author: Keith Potter

For many employers dismissing an employee for long term sick absence is probably regarded as one of the more straightforward tasks. The relevant case law has been established for about 40 years and the basic principles are well understood.

Author: David Seals

A well drafted contract of employment will normally contain a robust provision restricting the employee from disclosing the employer’s confidential information. But breaches of confidentiality do not regularly feature in employment cases that come before the Courts. There are various reasons why an employer may not pursue such matters. However, the position for employees in regulated sectors such as the banking industry who misuse confidential information is more fraught, as the case referred to below demonstrates.

Author: Nicola O'Dwyer

In a recent case, an employment tribunal considered whether crew members employed by EasyJet who were still breastfeeding when they returned from maternity leave had suffered indirect sex discrimination as a result of the airline’s failure to allow them to have bespoke roster arrangements.

Author: Nicola O'Dwyer

In FirstGroup PLC v Paulley, the Supreme Court considered the extent to which reasonable adjustments should have been made by a bus operator to accommodate a wheelchair user.

Author: Keith Potter

There is long-standing case law to the effect that, if a dismissal for misconduct is to be fair, the employer must investigate the facts thoroughly. It must then be able to show that it has reasonable grounds for concluding that the employee committed the misconduct of which he is accused and that the relevant misconduct is a sufficient reason for dismissing the employee. The employer’s decision must be shown to be within the range of reasonable responses – a principle which gives some latitude to employers.

Author: Keith Potter

The employment tribunal’s decision in the case relating to the Uber taxi drivers was given in late October 2016 (Aslam and others v Uber BV and others). The drivers claimed that they were “workers” under employment legislation. If true, this meant that they were entitled (a) to the national minimum wage for hours worked, (b) to paid annual leave and (c) to protection against unlawful deductions from wages.

Author: Keith Potter

There has been conflicting case law on the subject of the right of workers to take rest breaks during the working day. The Working Time Regulations entitle a worker to an uninterrupted rest break of at least 20 minutes (or 30 minutes in the case of a worker less than 18 years’ old) where the working day exceeds 6 hours.

Author: Keith Potter

In 2015 the government embarked on consultation about simplifying the tax treatment of termination payments, an area which has frequently given rise to dispute and uncertainty in the past. The government’s response to the consultation has now been published. The proposed changes will take effect in April 2018.

Historically, holiday pay was always calculated by reference to an employee’s basic pay. This principle was challenged in 2011 in a case involving various British Airways employees (Williams and others v British Airways plc), who successfully claimed that various allowances that they normally received in addition to their basic pay should be taken into account when calculating their rate of holiday pay. According to the Court, it was necessary to consider whether the additional allowances were intrinsically linked to the work which the employees were contracted to perform. The Court decided that there was a sufficiently close link and that the allowances should therefore form part of holiday pay.

Author: Matthew Kilgannon

Background

Christmas parties can be a hot bed issues for business owners and HR. With Christmas parties in full swing, the High Court has recently delivered a decision that provides a timely reminder of the extent of your liability at such events.

Author: Emily Kidd

As we begin the journey to move forward from the vote to leave the EU, we consider the implications for employment law of Brexit.

Author: Daniella Magennis

In the case of Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal considered whether it was a breach of Article 8 of the European Convention on Human Rights (ECHR) for employers to use personal material stored on an employee’s mobile phone in disciplinary investigations against that same employee where such content has an effect on work-related matters.

Author: Daniella Magennis

INTRODUCTION

Many employers offer employees childcare vouchers under a salary sacrifice scheme. This allows employees to benefit from tax and national insurance savings.

Author: Daniella Magennis

On 26 November 2015, the Government Equalities Office issued guidance for employers on recruiting and retaining transgender employees. This new advice has been produced in collaboration with the UK’s leading inclusion and diversity experts, Inclusive Employers, who work with employers to achieve an inclusive culture in the workplace. Correspondingly, the recently published guide offers useful practical suggestions and ideas on how employers can implement new strategies in the running of their organisation to afford more consideration to transgender employee needs; thereby creating an ethos that engenders dignity to all workers, allows every member of staff to feel included and complies with the law.

Author: Matthew Kilgannon

We often advise clients regarding the enforceability, or otherwise, of clauses seeking to limit the activities of former employees. Most people are of the view that such clauses cannot be enforced, but, if properly drafted; such post-termination restrictions can be enforceable.

Author: Emily Kidd

As we digest the effect of today’s budget on our lives, I set out below a summary of the implications for employers.

At Downs, we regularly review and draft Service Agreements for Directors and contracts of employment (whether for full-time staff, part-time staff, fixed term appointments, home workers, zero hours etc). Doing so enables us to highlight some important areas for you to consider.

Author: Keith Potter

It is frequently said that an employer ought to act promptly when made aware of information which may involve a breach of a disciplinary rule, particularly in cases where the possible penalty is dismissal.

Author: Keith Potter

From time to time employers are faced with cases in which two or more employees have taken part in an instance of misconduct, often one involving violent or threatening behaviour. The employer may take the view that the conduct of one of the participants was more reprehensible than that of the other(s). Is the employer entitled to differentiate between the employees as regards the disciplinary sanctions that it imposes?

Author: Keith Potter

A further illustration of the pitfalls associated with allegations of disability discrimination arises from a recent Employment Appeal Tribunal (EAT) case involving the giving of a written and verbal reference.

Co-Authors: Matthew Kilgannon and Daniella Magennis

BACKGROUND

Many employers are oblivious to a very important legal responsibility; protecting the health and safety of employees who drive at work.

On 6 October, the Court of Justice of the European Union (CJEU) issued its decision that has far reaching implications on businesses that transfer personal data to the United States. It held that the European Commission’s decision on 26 July 2000 that personal data can be transferred to the United States where organisations sign up to the ‘Safe-Harbour’ data protection principles, was invalid.

Author: David Seals

In the recent case of Ramphal –v- Department for Transport, the Employment Appeal Tribunal (“EAT”) held that a dismissal was potentially unfair where it had been too heavily influenced by the HR department. The case has serious implications on the limit to HR’s role in dismissal cases.

Author: Nicola O'Dwyer

The menopause may be a taboo subject at work but employers who ignore it are potentially at risk of employment claims. A recent government commissioned report indicated that employers should consider the impact that the menopause may have on their female employees and how they can address any issues they may experience.

Author: David Seals

In the recent case of Mbuyi –v- Newpark Childcare (Shepherds Bush) Limited an employment tribunal found that a Christian nursery worker had been unlawfully discriminated against when she was dismissed for expressing negative views of homosexuality at work in relation to a colleague.

Author: David Seals

With less than a week until polling day, we consider what the main political parties have planned for employment law should they be elected.

Author: David Seals

The Employment Appeal Tribunal (EAT) has made a decision which suggests that the “public interest” test for whistleblowing claims introduced two years ago will be a much easier one to satisfy than had been previously thought.

Author: Matthew Kilgannon

The recent case of Timothy James Consulting v Wilton has provided some helpful guidance on a couple of important areas of law:

Author: David Seals

Shared Parental Leave (“SPL”) is a brand new employment right from April 2015 which allows working parents to share statutory leave and pay on the birth or adoption of a child.

Shared Parental Leave and Pay - the New Employment Right

Maternity Leave – pregnant employees are entitled to 52 weeks maternity leave and, subject to eligibility conditions, 39 weeks statutory maternity pay (“SMP”). SMP is paid at the following rates: 

Author: Nicola O'Dwyer

In December 2014, the Government launched the Fit for Work scheme (“FFW”). The scheme includes a website and telephone advice line. The opportunity for an occupational health referral will be in place by May 2015.

Author: Matthew Kilgannon

Overview

As has been highlighted in the press, the Employment Appeal Tribunal (“EAT”) has this week delivered a decision in the cases of Bear Scotland Ltd v Fulton (and other co-joined appeals) that could have far reaching implications for employers.

Author: David Seals

With the World Cup about to kick off in Brazil these are exciting times for football fans. Expectations for the England team doing well are (thankfully) not high but, based on past experience, expecting a few World Cup-related employment issues might be something you should plan for.

Author: Matthew Kilgannon

In Blackburn –v– Aldi Stores Limited the Employment Appeal Tribunal (EAT) considered whether an employer’s failure to provide an impartial grievance process could amount to a breach of the implied term of trust and confidence, and form the basis of a constructive dismissal claim.

Author: Matthew Kilgannon

Employment disputes are inevitable and will often result in the employer seeking to terminate the employment relationship. As an employment lawyer, I advise both employers and employees on their duties and rights in settling employment disputes. For most people, the best way of resolving such disputes is through the use of a Settlement Agreement; an alternative solution that avoids long drawn out litigation and an Employment Tribunal.

Author: David Seals

Employees’ contracts of employment are important legal documents which should be periodically reviewed and kept up to date. There are various reasons why you might want to update and change contracts of employment.

Author: Nicola O'Dwyer

It is likely that there will be occasions when an employee fails to attend the workplace owing to circumstances beyond his/her control. This type of non attendance may be caused by the following:...

Author: Matthew Kilgannon

In 2013, we saw a number of changes to the rules relating to unfair dismissal, which includes:...

Author: Nicola O'Dwyer

HMRC has recently issued a consultation paper on false self-employment, due to increasing evidence that Intermediary Companies and Employment Businesses are being used to present individuals as self employed to avoid paying national insurance and tax. They also avoid the costs and risks associated with having employees.

Author: Laura Marchington

Zero-hours contracts have been the subject of much debate over recent months. This includes a lot of press coverage where these types of arrangements have alleged to have been abused. Figures from research carried out by the Chartered Institute of Personnel and Development (CIPD) estimates that around 3% of the workforce are working on a zero-hours contract; that is, approximately one million people.

Authors: SImone Horrobin and Matthew Kilgannon:

The recent Supreme Court decision of Woodland v Essex County Council highlights the exposure faced by Schools when engaging third parties to provide services. While the case involved a maintained School, the implications apply equally to independent Schools, indeed, part of the Court’s rationale included reference to fee-paying schools have greater exposure given the contractual nature of the relationship.

As one of its many recent changes, the Government has now introduced a new right for employers, employees and their representatives to have confidential discussions regarding the termination of an individual’s employment.

Employee Shareholder status came into force on 1st September 2013. The Growth and Infrastructure Act 2013 introduced a new section into the Employment Rights Act 1996 which provides employers the opportunity to provide shares to an employee (the Employee Shareholder), in return for the employee giving up some of their employment rights.

In Neal -v- Freightliner Limited an Employment Tribunal considered whether overtime pay should be included when calculating statutory holiday pay.

There are three major changes to employment law which come into effect on 29 July 2013:

In USDAW –v- Ethel Austin Limited (in administration) & another case, the EAT has given its long awaited decision regarding protective awards under TULRCA. This involved the cases of employees of the Woolworths and Ethel Austin Stores, the former of which went into administration in November 2008.

In I Lab Facilities –v- Metcalfe & others, the Employment Appeal Tribunal (EAT) considered who could be “affected employees” as defined in TUPE for the purposes of a complaint for failure under the information and consultation provisions.

In AEI Cables Limited –v- GMB & others, the Emploument Appeal Tribunal (EAT) considered whether a maximum protective award under the Trade Union and Labour Relations (Consolidation) Act 1992 had been appropriate.

In Kavanagh and others v Crystal Palace FC (2000) Ltd the Employment Appeal Tribunal found that an employment tribunal had erred by finding that dismissals by an administrator were fair because they were for an ETO reason.

In the Secretary of State for Business –v- McDonagh & others, the Employment Appeal Tribunal (“EAT”) had to consider when “insolvency” occurred under the Employment Rights Act 1996 (“ERA”) in respect of claims for arrears of pay and holiday pay from the National Insurance Fund (“NIF”).

Towards the end of 2012, the Government announced its intention to allow more flexible and family friendly working practices.

Restrictive covenants that limit what an employee can do after leaving an employer are extremely difficult to get right, especially non-compete clauses, where the employee is limited in competing with the business for a fixed period after termination.

In the case of ANGED v FASGA, the European Court of Justice deliberated on whether a worker was able to take leave at a later date when it fell during a period of statutory leave.

If there is a reduction in hours of work does it amount to a redundancy? This was the burning question before the Employment Appeals Tribunal in the case of Packman t/a Packman Lucas Associates v Fauchon.

In the recent case of Ranson v Customer Systems Plc the Court of Appeal set the parameters of when an employee owes his employer fiduciary and fidelity duties.

On Friday 2nd May 2012, the Queen announced the Government’s legislative agenda for the next year. The focus is introducing new measures to boost the UK economy. Two Bills were specifically mentioned: The Enterprise and Regulatory Reform Bill aimed at “creating the right conditions for economic recovery” and The Banking Reform Bill, which will “foster financial stability and a more resilient banking sector”.

A recent case in the Employment Appeal Tribunal (EAT) has stated that TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006) does not apply to the assignment of a lease unless the economic entity retains its identity.

Unfair Dismissal

On 6th April 2012, the qualifying period for employees to bring a claim for unfair dismissal in the Employment Tribunal increased from one to two years. This rule is only applicable to employees that commence employment on or after the 6th April 2012. Anyone employed before this date will only have to accrue one year’s service before bringing a claim for unfair dismissal.

In Samsung Electronics (UK) Limited –v- Monte-D’Cruz, the Employment Appeal Tribunal (EAT) considered, amongst other things, whether following a restructure of employment roles an employer was compelled to offer a vacant post to an otherwise redundant employee despite him performing poorly at interview for the post.

Key2Law (Surrey) Ltd v De'Antiquis [2011] EWCA Civ 1567

The BIS has issued a call for evidence seeking views on the effectiveness of TUPE 2006.

The Government has issued draft legislation on it’s proposal to increase the qualifying period to claim unfair dismissal from one year to two. The Order is succinctly known as The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, and can be viewed here http://www.legislation.gov.uk/ukdsi/2012/9780111519974

To help combat the level of sickness by employees, approximately 140 million days per year, the Government called for a major review of the sickness absence system in February 2011.

The Regulations are intended to give effect to the Temporary Agency Workers Directive (the Directive) and they came into effect on 1 October 2011. The aim of the Directive is to provide basic working and employment conditions for assigned workers that are no less favourable than if they had been recruited directly by the hirer.

The Government has announced proposals that will cause the biggest shake-up of employment law for decades.