Lewis Silkin is widely recognised as a leading specialist employment law practice. Our team of over 100 UK lawyers includes 23 partners. Clients range from large corporations and PLCs to entrepreneurs, and include those in a variety of sectors including advertising and marketing, media and entertainment, retail, hospitality & leisure, technology, professional services, financial services and sports business. Lewis Silkin is the UK member of Ius Laboris, the world’s leading HR practice, and is also the UK representative of the Global Advertising Lawyers' Alliance (GALA), an international alliance of lawyers with expertise in advertising and marketing law.
Employment & Immigration
The government has announced that the planned reforms to IR35 will now take effect on 6 April 2021 instead of 6 April 2020 as previously planned. The postponement will come as an enormous relief to businesses that were struggling to prepare for this significant change to employment tax while dealing with the issues introduced by the fast-changing coronavirus situation. However, this is clearly a deferral of the reforms rather than an abandonment.
The Employment Appeal Tribunal has ruled that an employee's dismissal for gross misconduct was unfair because the investigating officer failed to share significant new information with the manager who conducted the disciplinary hearing and decided to dismiss the employee. The case highlights the importance of employers undertaking thorough investigations into disciplinary-related allegations before making a final decision.
The coronavirus outbreak has brought to the fore numerous employment law concerns, including questions about travel, health and safety, work attendance and discrimination claim risks. This article examines what employers in the United Kingdom need to know about the outbreak.
Failing to enhance pay for shared parental leave is not sex discrimination – permission to appeal refusedUnited Kingdom | 11 March 2020
The Supreme Court has refused permission to appeal in Chief Constable of Leicestershire Police v Hextall. This means that the law remains as set out in the Court of Appeal's judgment, which stated that failure to enhance pay for shared parental leave was neither indirect discrimination nor a breach of equal pay rights.
The Fawcett Society is backing a private member's bill which aims to tackle unequal pay between men and women by introducing a new 'right to know' what male comparators are paid. The aim is to provide women who are not being paid equally to male comparators a route to get the information that they need. The bill also proposes to change the gender pay gap reporting process.
In a welcome but late move, Her Majesty's Revenue and Customs (HMRC) has confirmed that the imminent IR35 reform will apply only to supplies of labour provided on or after 6 April 2020. With less than two months to go before the change takes effect, many businesses will consider HMRC's announcement and its recently issued detailed guidance too little too late as they grapple with the significant administrative burden and cost implications of the reform.
The government has finalised the legislation to implement an entitlement to two weeks' paid bereavement leave for working parents who lose a child aged under 18. The new right will come into force with effect on 6 April 2020. In readiness, all employers should review their policies and practices and amend them as necessary to reflect the new rights.
The proposed IR35 reform represents the biggest change to employment tax for decades. Until now, businesses have been able to engage contractors using personal services companies (or other intermediaries) without having to give much thought to the individual contractor's status for tax purposes. The proposed changes mean that businesses must review how they engage with contractors ahead of April 2020.
The Equality and Human Rights Commission has published substantial new guidance on sexual harassment and harassment at work, setting out detailed recommendations that employers should consider following to prevent and deal with such behaviour. The guidance puts the onus on employers to be more inquisitive about what is going on in their workplace, rather than simply having policies and dealing with complaints.
In a decision with implications for unfair dismissal law generally, the Supreme Court ruled that it is not always necessary for a dismissing manager to know about whistleblowing disclosures made by an employee in order for that dismissal to be automatically unfair. The facts of the case were extreme, involving a manager who had deliberately created a false picture of inadequate performance which the dismissing manager had then believed, but the decision nonetheless has significant wider implications.
According to an employment tribunal in the widely reported case brought by Jordi Casamitjana, ethical veganism can be a philosophical belief that is protected under the Equality Act. But what does this mean in practice for employers?
What were the most significant employment law developments in 2019? What can be expected in 2020 under a newly elected Conservative government with a sizeable majority? Despite Brexit continuing to dominate the political agenda in 2019, there were significant decisions in the courts and proposals for reform. Looking ahead to 2020, various Good Work Plan reforms will come into effect and the government plans to introduce a new Employment Bill, paving the way for further employment law reforms.
In a surprise decision, with potentially wide-ranging ramifications, an employment tribunal has found that workers, as well as traditional employees, transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006. The decision is employment tribunal level only, so it has no binding precedent weight and may be appealed. Nonetheless, it raises some immediate practical considerations.
In the face of undoubtedly strong feelings on both sides of the Brexit debate, questions are likely to arise regarding the implications of employees bringing their Brexit views into the workplace. Specifically, are there potential discrimination risks and could a strong belief regarding Brexit count as a philosophical belief for the purposes of the Equality Act 2010?
Despite the dominance of Brexit, employment issues are one of the main election battlegrounds for all of the major political parties. There is a particular focus on current hot topics, including insecure work and the gig economy, the gender (and other) pay gaps and new mechanisms for enforcing employment rights. This article covers the key employment measures that have been proposed by the Conservatives, Labour, the Liberal Democrats, the Green Party and the Scottish National Party.
The Court of Appeal has refused an application by British Airways plc for an injunction to restrain strike action by airline pilots, thereby ruling that the trade union provided sufficient detail as to the categories of employee to be balloted under the statutory rules. The ruling provides useful clarification for unions and employers when they are respectively drafting and supervising industrial action ballot notices.
The Supreme Court recently ruled that judges are workers under whistleblowing legislation and are thus protected from being treated badly for making a protected disclosure. In the case at hand, the court agreed that the judge did not obviously fall within the definition of a 'worker' because she did not work under a contract, which would mean that she was not protected by whistleblowing laws. However, the court decided that this failed to protect her human rights – specifically, the right to freedom of expression.
Confidentiality clauses or non-disclosure agreements have become a topic of significant interest because of how they can be used to prevent employees from reporting allegations of sexual harassment or other similar misconduct. The government recently published its response to a consultation on the regulation of confidentiality clauses, which sets out a number of proposals for new legislation in this area.
A recent Employment Appeal Tribunal case clearly underlines that, on a Transfer of Undertakings (Protection of Employment) transfer, new employers must ensure that all records kept by the transferor in relation to the national minimum wage are transferred when it takes over the employees (especially as such records are likely to be held electronically). The transferor's refusal or failure to provide the records should be dealt with by way of indemnities or other contractual provisions in the transfer documentation.
The Employment Appeal Tribunal (EAT) recently ordered an employer to disclose comments that it had received from its external solicitor relating to an employee's dismissal because it had deliberately disclosed other related privileged documents which were helpful to its case. Interestingly, this case is one of the few where the EAT has had to grapple with issues relating to privilege. It is also a strong reminder that employers that make a tactical decision to waive privilege must be aware of the potential ramifications.
The Trades Union Congress (TUC) recently published its recommendations for eliminating class-based bias in society. Its report points to a number of statistics demonstrating that working-class individuals suffer disadvantage in the employment sphere. As such, the TUC has proposed (among other things) the introduction of compulsory class pay gap reporting for all employers.
During the Trades Union Congress conference in early September 2019, the Labour Party announced plans for a new Workers' Protection Agency and Ministry for Employment Rights. In particular, Labour Party Leader Jeremy Corbyn promised the biggest ever extension of employment rights in the United Kingdom, designed to put power in the hands of workers. Other Labour Party proposals include expanding 'worker' status to everybody except genuinely self-employed persons.
The Court of Appeal has held that holiday entitlement and pay for workers on permanent contracts should not be prorated to reflect the fact that they work on a part-year basis. In light of this decision, employers using set percentages to calculate holiday pay should consider auditing their workers on permanent contracts to ensure that these fixed rates do not result in them receiving less than their statutory entitlement.
A report by the Women and Equalities Committee has recommended a fundamental shift in the way in which discrimination claims are brought so that individuals do not carry the burden of enforcing their rights. The report urges the Equalities and Human Rights Commission to bring more cases and better publicise its enforcement work so that employers and other organisations are not complacent about equality.
In the United Kingdom's first appeal case on the operation of a European works council, the Employment Appeal Tribunal (EAT) has ruled that European works councils cannot slow down managerial decision making by delaying the provision of an opinion after being informed and consulted. The EAT's decision is unsurprising but nonetheless welcome for employers.
As part of a flurry of responses and new consultations issued in the last days of Theresa May's government, the response to the consultation on measures to prevent the misuse of confidentiality clauses in the workplace was published. It sets out a number of significant legislative proposals which, when implemented, will necessitate redrafting of these clauses in both employment contracts and settlement agreements.
What might a no-deal Brexit mean for UK employment rights? What could employers do now to prepare? And what might the future hold in a no-deal scenario? Prime Minister Boris Johnson is clear that he would be prepared to leave the European Union without a deal if necessary and the current legislation commits the United Kingdom to leaving the European Union at 11:00pm on 31 October 2019. Thus, it seems like a good time to revisit the employment law implications of a no-deal Brexit for employers.
The Court of Appeal recently found that it is unlawful to discriminate against a person because of a mistaken perception that they have a progressive condition which would make them unable to perform the full functions of a role in future. This decision confirms that the test is not whether the discriminator believes that the impairment meets the legal definition of 'disability', but whether they believe that it has those features. However, beyond this point, the case has raised some difficult issues.
The EU Work-Life Balance Directive introduces new rights for carers and working parents. If the United Kingdom needs to comply (or if it chooses to do so), UK employers must make several changes to their existing family leave and pay framework. For example, although the United Kingdom provides a right to paternity leave and pay, both rights are currently subject to a six-month service requirement. To comply with the directive, the service requirement for paternity leave (although not pay) would need to be scrapped.
The Court of Appeal recently ruled that offers made directly by an employer to its employees in relation to pay and working hours did not amount to an unlawful attempt to bypass collective bargaining contrary to Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992. As such, a cautious approach remains sensible given the punitive fines if an employer goes too far in its offers to employees.
The government is committed to cracking down on disguised employment. In order to achieve this, the IR35 rules will change from April 2020. The IR35 rules apply where contractors personally provide services via an intermediary. However, if the contractor is directly engaged, they would be considered an employee or office holder for tax purposes. The changes will also apply to more complex labour chains, so an early understanding of the labour supply chain is critical.
The Court of Appeal recently confirmed that the EU Working Time Directive requires voluntary overtime to be included in holiday pay if it is sufficiently regular and settled to amount to normal remuneration. This ruling is in line with other recent cases which have covered what should be considered when calculating holiday pay. It provides clear authority that employers should include sufficiently regular and settled voluntary overtime in their holiday pay calculations.
In an emphatic judgment, the Court of Appeal has ruled that it is not direct discrimination, indirect discrimination or a breach of equal pay rights to provide enhanced pay for maternity leave and statutory pay only for shared parental leave (SPL). This judgment is good news for employers, as it sends a clear message that it is lawful to enhance maternity pay but provide statutory pay only for SPL.
Employee ordered to pay more than £500,000 in legal costs in breach of restrictive covenants and data privacy caseUnited Kingdom | 03 July 2019
Following a trial in the High Court where an employer was awarded final injunctions to prohibit a former employee from breaching post-termination restrictions, the losing employee was ordered to pay 90% of his former employer's legal bill. This is a useful decision for employers, as it demonstrates that a reasonable and proportionate email trawl need not infringe an employee's privacy rights.
In an unusual case of whistleblowing detriment brought by an overseas employee against two co-workers (also based overseas), the Court of Appeal has ruled that the employment tribunal in question had no jurisdiction to hear the claim in relation to personal liability of the co-workers because they were outside the scope of UK employment law. The decision may have implications for other types of claim brought by employees posted overseas where similar personal liability provisions apply.
In December 2018, following Matthew Taylor's extensive review of modern employment practices, the government unveiled its Good Work Plan, which set out a long list of proposals. The employment law reforms mapped out by the government are still in their infancy, but this is a good moment to reflect on where things stand and what lies ahead.
The European Commission has revised its guidance on the legal repercussions of the United Kingdom's withdrawal from the European Union for European works councils, including the implications of a no-deal Brexit. Among other things, the guidance states that the EU European Works Council Directive will cease to apply to the United Kingdom and that UK employees may continue to be represented on a European works council if that is provided for in the European works council agreement.
The Employment Appeal Tribunal recently upheld a decision that the removal of outdated contractual entitlements following a Transfer of Undertakings (Protection of Employment) (TUPE) transfer was not void, as the sole or principal reason was not the transfer or a reason connected with the transfer. This is a relatively rare example of contractual changes following a TUPE transfer being permissible.
The Court of Appeal recently upheld a decision that the dismissal of an employee immediately before a Transfer of Undertakings (Protection of Employment) Regulations transfer was automatically unfair because the principal reason had been the transfer. This case underlines that even where an employer believes that it has a non-transfer-related rationale for a dismissal, caution should be exercised where it will occur close to the transfer date.
The High Court recently considered whether a Transfer of Undertakings (Protection of Employment) (TUPE) indemnity for employment payments which fell due before the transfer date included sums whose payment dates had not yet crystallised. The case serves as a warning to practitioners when drafting TUPE provisions (eg, in asset purchase or outsourcing agreements).
A recent Court of Appeal judgment is a helpful reminder of the applicable legal tests in securing an interim springboard injunction. It also identifies several practical factors that may influence the granting of discretionary remedies in the context of a team move and reminds employers facing an injunction application of the risk that the 'truth will out' if they (or their new recruits) present misleading evidence to the court.
The final form of Brexit remains uncertain, as does its impact on European works councils governed by UK law. As such, employers with European works councils currently governed by the United Kingdom's European works council legislation are strongly advised to conditionally appoint a new representative agent in a state that will remain in the European Union.
The Court of Appeal recently upheld an Employment Appeal Tribunal decision that Asda's lower-paid, predominately female retail staff can compare themselves to higher-paid, mainly male, distribution depot staff. While the facts are specific to Asda, any employer with different groups of predominantly male or female workers should review its pay practices, regardless of whether these groups work at the same site.
The government recently published a consultation paper extending protection from redundancy for pregnant women, women who have returned to work after maternity leave and new parents. The paper seeks views on whether protection should be extended throughout pregnancy and for a period after a woman returns to work and whether this should also apply to parents who have taken other types of leave.
In 2018 sickness absences cost UK employers an average of £656 per employee. With employers likely to experience the highest levels of sickness absence between January and March, those looking to tackle short-term intermittent sickness absence may want to consider (among other things) offering flexible working options and duvet days while limiting the amount of annual leave employees take in the summer.
The government recently published details of its Good Work Plan, which sets out its considered position on the Taylor review of modern working practices. While the plan provides useful information on what is likely to happen, it is too early for employers to do much to prepare. The draft regulations that have been published so far are relatively straightforward and most changes will not come into effect until April 2020 at the earliest.
There were a number of significant employment law decisions in 2018, particularly on the issue of employment status, which continues to be a hot topic. In addition, the fallout from various high-profile allegations of sexual harassment and the resulting #MeToo movement has continued, with the use of non-disclosure agreements in harassment cases provoking debate. There are also various reforms planned following the government's response to the Taylor review of modern working practices.
The Court of Appeal recently upheld the Employment Appeal Tribunal's ruling that drivers engaged by Uber are workers rather than independent contractors. The majority also upheld the employment tribunal's finding that drivers are working when they are signed into the Uber app and ready to work. Doubt arose from the fact that a driver could have other rival apps switched on at the same time, in which case it was arguable that they were not at Uber's disposal until having accepted a trip.
The High Court recently dismissed a judicial review challenge to a finding by the Central Arbitration Committee that Deliveroo riders are not workers. Although permission for judicial review had been granted on limited grounds, the judgment provides important guidance on what constitutes an employment relationship in the context of EU human rights law and emphatically endorses Deliveroo's position that riders are genuinely self-employed.
The High Court recently considered a case where an internal auditor from the supermarket chain Morrisons disclosed payroll data on the Internet relating to about 100,000 of his colleagues following an internal disciplinary process. The auditor was tracked down, charged and sentenced to eight years in prison. But was Morrisons liable to the employees whose information he had leaked?
The chancellor recently confirmed that with effect from 6 April 2020, businesses in the private sector which engage 'contractors' (ie, individuals who supply their services via their own company or partnership (the intermediary)) will be responsible for determining whether the IR35 rules apply. If the business considers that IR35 applies, the person paying the intermediary will be responsible for operating pay-as-you-earn and national insurance contributions on the fees that it pays to the intermediary.
The government's plan to make termination payments in excess of £30,000 subject to employer national insurance contributions has been delayed for a second time and will now take effect from April 2020. Initially this change was expected to be introduced from April 2018; however, the Autumn 2017 Budget announced that it would take effect from April 2019. The further delay is welcome news for employers as it will help to keep the costs of settlement payments down for another 12 months.
Court backs recruitment agency seeking to enforce non-solicitation and non-dealing clauses against former employeeUnited Kingdom | 05 December 2018
The High Court has awarded an interim injunction to Berry Recruitment Limited to prevent a former employee from soliciting and dealing with its clients and candidates. This case reinforces the fact that, in the right circumstances, recruitment businesses can enforce post-termination restrictions against employees without the trouble and expense of a full hearing.
The Court of Appeal has ruled that a company was vicariously liable for the violent conduct of its managing director in physically attacking one of his employees at a Christmas party. The decision confirms that employers can be vicariously liable for actions taking place outside the normal employer-employee environment, such as an off-duty misuse of authority by someone in a senior position.
The government says that it is "time to move to mandatory ethnicity pay reporting" and recently launched a consultation on a possible new law. The consultation seeks feedback on the sort of information that employers should be required to publish. It sets out some different ways in which this could be done, including by having a single pay gap figure of 'white versus non-white' or multiple pay gap figures for all of the different ethnicities or by publishing pay information by £20,000 pay band or by quartile.
The Information Commissioner's Office has made a civil monetary penalty order of £120,000 against Heathrow Airport Ltd after a lost USB stick containing the sensitive personal information of a number of employees was found by a member of the public. Employers should evaluate whether it is necessary to allow employees to use removable storage media and ensure that employees are fully informed of the applicable data protection policies and given relevant and adequate training.
The Parental Bereavement (Pay and Leave) Bill recently received royal assent to become the Parental Bereavement (Leave and Pay) Act 2018. The act entitles employed parents who have lost a child to take statutory paid leave to allow them time to grieve. The new rights are expected to come into force in 2020.
The Employment Appeal Tribunal recently upheld a decision that the dismissal of an employee immediately before a Transfer of Undertakings (Protection of Employment) Regulations transfer was automatically unfair because the principal reason was the transfer. The case emphasises that even where an employer believes that it has a non-transfer-related rationale for the dismissal, caution should be exercised if the dismissal will occur close to the transfer date.
In a case about whether Transfer of Undertakings (Protection of Employment) (TUPE) Regulations applied to the transfer of a public health team commissioning service, the Employment Appeal Tribunal has considered points of appeal in relation to two seldom litigated provisions of TUPE: Regulations 3(5) and 4(1).
The Employment Appeal Tribunal has confirmed that when considering whether there has been a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations, a tribunal must identify the relevant activity. Further, the analysis must be conducted in the right order and any fragmentation should be considered when determining whether activities carried on by the subsequent service provider are fundamentally the same as those carried on by the outgoing service provider.
The House of Commons Women and Equalities Committee has published a report on sexual harassment in the workplace highlighting five points on which it is calling on the government to take action. The committee's call to put sexual harassment at the top of the agenda for both the government and employers is timely, although it remains to be seen what effect the recommendations will have and whether specific legislative proposals will emerge in response.
The Court of Appeal has decided that care workers carrying out so-called 'sleep-in' shifts are not entitled to the national minimum wage for the whole shift, but rather only when they are required to be awake and working. In so ruling, the court has overturned various earlier decisions of the Employment Appeal Tribunal and contradictory guidance from Her Majesty's Revenue and Customs, which would have exposed the care sector to claims for arrears of pay worth hundreds of millions of pounds.
Although massively contentious, the government's white paper proposals on the relationship between the United Kingdom and the European Union post-Brexit add some flesh to the bones of what future interrelation between the two entities may look like. But what are the key points for employment lawyers?
The EU Withdrawal Bill has received royal assent and become the EU (Withdrawal) Act 2018. As a result of the act, it is now law that the United Kingdom will leave the European Union at 11:00pm on 29 March 2019, with the European Communities Act 1972 being repealed. Only fresh legislation could delay or overturn the United Kingdom's departure. What does this mean from an employment law perspective?
In the latest development regarding worker status and the gig economy, and applying the recent Supreme Court decision in Pimlico Plumbers, the High Court has rejected the Independent Workers of Great Britain trade union application for a judicial review of the Central Arbitration Committee's decision that Deliveroo riders are not workers based on the terms of Deliveroo's substitution clause.
Over the past few months, the United Kingdom has gone from shivering in sub-zero temperatures to experiencing one of the hottest summers on record. Although the sun may be more welcome than the snow, it can still cause headaches for employers. As such, there are a number of factors that they should keep in mind when the mercury starts rising.
In the latest major development in a series of cases on employment status, the Supreme Court rejected an appeal by Pimlico Plumbers and confirmed that a self-employed plumber should have been classed as a worker. In a unanimous judgment, the court upheld the previous decisions, ruling that the employment tribunal had been entitled to find that the plumber was a worker and that he was in employment for the purposes of protection from discrimination.
The government intends to introduce legislation that requires all UK-listed companies with more than 250 employees in the United Kingdom to report annually on the difference in pay between their chief executive officer and their average UK worker. However, compiling the data required to produce the reports will be another headache for overstretched legal, human resources and payroll teams.
The government has launched a consultation to tackle non-compliance with the IR35 regime in the private sector. If the main proposal is implemented, businesses engaging individuals who supply their services via their own company or partnership (intermediary) will be responsible for determining whether the IR35 rules apply. If so, the party paying the intermediary will be responsible for operating pay-as-you-earn tax and national insurance contributions on the fees that it pays to the intermediary.
In the latest decision on employment status in the gig economy, the Employment Appeal Tribunal (EAT) has dismissed Addison Lee's appeal against an employment tribunal decision that its cycle couriers were workers and therefore entitled to holiday pay. The EAT upheld the tribunal's findings that the established practice and expectation of both parties was that the couriers would carry out work as directed, which was sufficient to prove that they were workers under the legal test.
The Employment Appeal Tribunal recently indicated that enhancing maternity pay, but not pay for shared parental leave, may give rise to indirect sex discrimination claims by fathers. Indirect discrimination was always expected to prove a much greater challenge to employers paying different rates of pay to women on maternity leave and parents taking shared parental leave. Unfortunately, the tribunal's decision has not resolved this issue.
The Equality and Human Rights Commission is adopting a rigorous approach to the enforcement of the gender pay gap reporting regime. It recently confirmed in a Freedom of Information Act request that it has sent 1,456 letters to employers that it believes have failed to comply with the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 and indicated that it will be investigating every company that has failed to comply.
Her Majesty's Revenue and Customs has published guidance on the new rules that require income tax and national insurance contributions to be paid on all payments in lieu of notice from April 6 2018. While the guidance had been eagerly awaited, given the uncertainty over how the rules will operate in practice, a number of questions remain unanswered.
The Employment Appeal Tribunal has decided that failure to pay a father his full salary during shared parental leave does not constitute sex discrimination in circumstances where a mother taking maternity leave during the same period would have received full pay. The tribunal held that a woman on maternity leave and a man taking shared parental leave are not in comparable circumstances. Further, the Equality Act allows special treatment to be given to women in connection with pregnancy or childbirth.
New tax rules will mean that income tax and national insurance contributions must be paid on all payments in lieu of notice from April 6 2018. However, the new rules are complex and although Her Majesty's Revenue and Customs has confirmed that it will soon issue guidance on how they operate in practice, further details published recently have only added to the confusion.
Media outlets have reported that Her Majesty's Revenue and Customs has initiated a crackdown on unpaid internships, including sending letters warning that workers must be paid the national minimum wage and setting up teams to tackle the problem. Organisations that fail to pay the minimum wage to interns who are workers may be penalised and the individuals could bring claims for back pay.
The government has published its Good Work Plan in response to Matthew Taylor's review of modern working practices. While the response sets out the government's intention to proceed with nearly all of the review's recommendations, it lacks specific proposals and much of the detail will be subject to further consultation. Acknowledging that employment status in particular is a complex area, the government has put forward no firm proposals.
Income tax and national insurance contributions must be paid on all payments in lieu of notice from April 6 2018. The new rules emerged from a government consultation on the simplification of the tax treatment of termination payments. However, far from simplifying their taxation, the rules impose a complex administrative burden on employers and are likely to increase the costs to both employers and employees.
How relevant are the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) in the context of a share sale? A recent Employment Appeal Tribunal decision provides a reminder that TUPE can easily come into play when a buyer is considering what to do with its newly acquired subsidiary. In this case, the buyer's actions led to an unexpected TUPE transfer and a £3.5 million bill.
The Employment Appeal Tribunal has issued a decision on the application of the Transfer of Undertakings (Protection of Employment) Regulations in the context of an offshoring of services and whether a transferring employee is entitled to protection of his or her salary terms if he or she relocates to the new place of operations in the transferee's home jurisdiction. The tribunal stated that the regulations permit variation of contracts, but the changes must be agreed by both the employee and the employer.
The Employment Appeal Tribunal recently held that where the effective date of termination is in dispute in an unfair dismissal case, a tribunal can hear evidence of pre-termination negotiations if it is relevant to determining the issue. It held that the fact and content of pre-termination negotiations can be referred to in automatically unfair dismissal cases, as well as in relation to discrimination or breach of contract claims, unless the discussions are covered by the 'without prejudice' rule.
Employment Appeal Tribunal confirms that employer's attempt to bypass collective bargaining is unlawfulUnited Kingdom | 07 February 2018
The Employment Appeal Tribunal recently confirmed that offers made directly by an employer to its employees may constitute unlawful attempts to bypass collective bargaining contrary to Section 145B of the Trade Union and Labour Relations (Consolidation) Act. The tribunal held that the fact that collective bargaining had continued in this case did not prevent the employer's direct offers from having the prohibited result.
The Employment Appeal Tribunal recently confirmed that it is unlawful for employers to discriminate against employees because of a perceived disability, even where an employee is not disabled under the relevant legal test. It held that disability discrimination based on a perception works in the same way as discrimination of other protected characteristics; therefore, even an incorrect assumption about a health condition still constitutes direct disability discrimination.
A recent High Court judgment in a case concerning supermarket chain Morrisons has illustrated how employers may be liable for the wrongful acts of rogue employees. The court held that Morrisons was indirectly liable for the disclosure of personal payroll data by an aggrieved internal auditor, despite the fact that it had upheld its security obligations, on the grounds that the auditor had acted in the course of his employment.
In its Autumn 2017 Budget, the government indicated for the first time how it intends to respond to the recommendations made by Matthew Taylor in his review of modern working practices. Previously, the government had been relatively quiet about how it would take those recommendations forward. However, in the budget, it committed to publishing an employment status discussion paper as part of its response to the review.
The chancellor of the exchequer announced in the Autumn 2017 Budget that there would be a consultation in 2018 to tackle non-compliance with IR35 rules in the private sector. While extending the reforms to the private sector might help to level the playing field between it and the public sector, such a change would also increase burdens and costs for businesses.
The European Court of Justice has ruled that where workers are not granted paid annual leave to which they are entitled under the EU Working Time Directive, they must be able to carry over and accumulate holiday rights from year to year and be compensated for these on termination of employment. The ruling has significant implications for UK businesses that have wrongly classified individuals as self-employed contractors, as workers could claim years' worth of unpaid holiday pay.
After a brief pilot scheme, the full scheme for refunding employment tribunal fees is now open for use. It can be used immediately by all claimants and respondents who have paid a fee during employment tribunal proceedings or during an appeal to the Employment Appeal Tribunal. Employers that have been involved in employment tribunal proceedings in the past few years should think carefully about whether they can reclaim any fees.
The Central Arbitration Committee (CAC) has rejected an application from the Independent Workers' Union of Great Britain for collective bargaining rights in respect of Deliveroo riders. In the first high-profile worker-status decision to find in favour of a company in recent times, the CAC held that Deliveroo's riders have a genuine right to use a substitute to perform deliveries before and after they have accepted a job, which riders take advantage of in practice.
The Employment Appeal Tribunal recently upheld the Employment Tribunal decision that drivers engaged by Uber are workers rather than independent contractors. The decision has been eagerly awaited by human resource and employment practitioners seeking guidance on how to apply the test for worker status properly in the context of gig economy businesses. However, the judgment is highly fact-specific and other cases concerning gig economy businesses may not be decided in the same way.
The Advisory, Conciliation and Arbitration Service has published a guide to promoting positive mental health in the workplace. The guide highlights the benefits for employers in proactively addressing this issue and sets out a step-by-step process to help them to achieve the key objectives of tackling the causes of work-related mental ill health, creating a culture where employees can talk about their mental health and supporting employees who are experiencing mental ill health.
The proposed Parental Bereavement (Pay and Leave) Bill – which aims to provide a statutory right to paid leave for employed parents who suffer the loss of a child – was recently introduced in Parliament. Previous attempts to introduce paid leave in these circumstances have been unsuccessful. However, the new bill has the government's support and is likely to become law.
The government has launched the first stage of its scheme for refunding employment tribunal fees following the Supreme Court's decision that the fees system was unlawful. The first stage will involve 1,000 people being contacted to apply for a refund, after which the full scheme will be rolled out. Employers should register their interest now and locate their Employment Tribunal order and proof of payment, in preparation for making an application when the full scheme opens.
Only 80 of the estimated 7,000 employers with 250-plus employees have uploaded their gender pay gap reports to the government's website. The snapshot from these reports reveals that the mean, mean pay gap and the mean, median pay gap are lower than expected. Further, the data shows a steady progression from a preponderance of female employees in the lowest paid quartiles to a preponderance of male employees in the highest paid quartiles. However, these statistics may not be reliable.
The government recently published the Finance Bills 2017 and 2018, which contain the latest proposals for changes to the tax and national insurance treatment of termination payments. The updated legislation, which is likely to be enacted, simplifies the rules regarding non-contractual payments in lieu of notice. However, the circumstances in which foreign service exemption or relief will be abolished have been widened.
The Employment Appeal Tribunal (EAT) recently ruled that individuals working in Asda retail stores can compare themselves with hypothetical distribution workers, allowing the United Kingdom's largest private sector group's equal pay claim to proceed. The EAT rejected Asda's argument that the Equality Act 2010 had altered the law when replacing the relevant section of the Equal Pay Act 1970 and upheld the use of hypothetical comparators where no actual comparators work at the claimant's establishment.
The government recently announced that it will take forward a number of proposals for corporate governance reform relating to employment, including proposals on executive pay ratio reporting, which echo the new gender pay gap reporting requirements. However, it remains to be seen whether the government will take on board some of the lessons of gender pay gap reporting or whether this will become another public policy initiative which produces misleading results and does little to tackle the underlying problem.
The Employment Appeal Tribunal has clarified that regular voluntary overtime payments form part of normal remuneration and should be included in the calculation of holiday pay for the purposes of the four weeks' minimum annual leave entitlement required by EU law. Employers should now review their overtime arrangements and approach to calculating holiday pay to ensure compliance with this decision.
The Supreme Court recently ruled that employment tribunal fees are unlawful. The case has significant constitutional and political implications, but also raises a number of thorny practical issues regarding the volume of future claims, administrative processes, refunds of historic fees and out of time claims.
The Parental Bereavement (Pay and Leave) Bill, introduced into Parliament in July 2017, would entitle employees who have lost a child to statutory paid leave to allow them time to grieve. Although this is a private member's bill, it is supported by the government and would fulfil a Conservative manifesto promise to ensure bereavement support for employees – so there is a good chance that it will become law.