Legal Round Up

With Christmas just a matter of weeks away organisations should take the necessary steps to ensure the season passes with minimum fallout. For many employees, the highlight of the season is the office Christmas party and organisations should take care to ensure aspects such as the venue and catering options are suitable for all staff, to avoid allegations of discrimination such as against those of a certain age or religion. As certain workplace rules, including alcohol consumption, tend to be relaxed during parties, there is often an increased risk of misconduct and bullying or harassment.…

Recent media coverage has highlighted that employers are failing to protect staff from harassment at work, emphasising the need for improved efforts to rid the workplace of this type of behaviour. Workplace harassment can take many forms and is generally defined as unwanted conduct that relates to an individual’s protected characteristic eg gender, race or age. Common examples include offensive language directed at a certain group, or physical contact ranging from unnecessary touching to physical assault. It may also be labelled as “banter”. For further information on the parameters of…

Increasing understanding of mental ill health, and promoting positive mental health, highlighted as measures to improve employee wellbeing. Mental health problems are estimated to affect one in four people each year, with far-ranging symptoms and conditions impacting each person differently. At any time, it is highly likely an organisation is employing at least one individual whose wellbeing is influenced by mental ill health. Supportive business practices can reduce the length of employee absences, improve morale and promote positive workplace wellbeing. On 10 October 2018, World Mental…

The Government has set out the consequences, in respect of employment rights, of being unable to agree a Brexit deal when the UK leaves the EU; a BEIS Committee suggests employers with 50 or more employees should be drafted into the requirement to report on their gender pay gap and the Employment Appeal Tribunal declares a refusal to postpone a disciplinary hearing rendered a dismissal unfair. Government sets out implications of 'no deal' Brexit Although the Government maintains that it is unlikely, it has published guidance on the implications on workplace rights if a ‘no-deal’ Brexit…

The Court of Appeal decides that sleep in workers are not entitled to the national minimum wage when asleep, and more employers have been named and shamed for failing to pay the minimum hourly rates to their staff. In other case law, the Court of Appeal also confirmed the position of the ‘interim period’ between an employee’s dismissal and his successful appeal. Court of Appeal rules in landmark 'sleep in' case The Court of Appeal recently decided, in Royal Mencap Society v Tomlinson-Blake, that workers who perform sleep in shifts are not entitled to national minimum wage (NMW) for the…

Recently published Ministry of Justice statistics show a continual increase in the number of employment tribunal claims made since fees were abolished almost a year ago. The long anticipated Supreme Court ruling in a long-running gig economy case has been published, confirming the Court’s agreement with previous decisions that a “self-employed” plumber was in fact a worker. Employment tribunal claims on the increase again The Ministry of Justice has released the latest statistics on employment tribunal claim numbers for the quarter running from January 2018 to March 2018. These statistics…

The long awaited guidance on discriminatory dress codes has been released by the Government Equalities Office. This guidance, entitled “Dress codes and sex discrimination - what you need to know” looks to provide best practice recommendations on how employers can avoid discriminatory dress codes with a significant focus on sex discrimination. The guidance explains that whilst dress codes for male and female employees do not have to be identical, the standards imposed should be equivalent. In addition, it is revealed that it ‘may’ be unlawful to require female staff to wear high heels and it…

This month, the Employment Appeal Tribunal (EAT) has handed down its judgement on a direct sex discrimination case involving shared parental pay. In other case law, the Supreme Court held there was an implied term in all contracts of employment as to the point that a notice period begins. Shared parental pay was not direct sex discrimination The Employment Appeal Tribunal (EAT) has recently decided that paying women on maternity leave more than men on shared parental leave was not direct sex discrimination. The ruling was based on the determination that a woman who has given birth is…

The new national minimum wage rates are now in operation, as are the new rates for statutory maternity pay and other family friendly rates. Other changes will also take place this month. Also, the Ministry of Justice has confirmed that the number of employment tribunal claims has increased by 90% in the last year. April's employment law changes In case you missed it, our article covers the employment law changes taking effect this month. These changes affect the national minimum wage, statutory rates such as statutory sick pay and statutory maternity pay, employment tribunal awards,…

New employment tribunal awards announced The Government has revealed the new maximum employment tribunal awards to take effect from 6 April 2018, and the Supreme Court hears Pimlico Plumbers’ latest appeal in its long-running employment status case. Also, see our new content on the General Data Protection Regulation (GDPR), including policies, ‘How to’ guides, letters and forms. Unfair dismissal compensation to increase The Government has confirmed that the maximum compensation award in unfair dismissal claims will increase to £83,682 (or a year’s pay, whichever is lower) from 6 April…

Supporting transgender employees in the workplace Stonewall urges organisations to adopt a zero tolerance position towards gender reassignment discrimination or harassment after a report found many transgender employees hide their gender identity. In case law, the European Court of Human Rights finds an organisation’s covert surveillance at work infringed employees’ privacy rights. Survey shows employees hide gender identity A survey commissioned by Stonewall, a leading LGBT charity, has shown that one in eight transgender employees has reported an attack by a customer or colleague, and “…

Latest statistics show huge increase in Employment Tribunal claims and yet another holiday pay decision  As expected, new Ministry of Justice figures show a significant increase in the number of claims made to the employment tribunal since fees were abolished. In recent case law, a worker was able to claim holiday pay arrears continuing over 13 years. ET claim numbers on the increase The first set of employment tribunal statistics since the abolition of fees has been published and show, as could be expected, a rise in claims. The statistics cover the period of July-September 2017: the…

In his Autumn Budget, the Chancellor confirmed the national minimum wage increases which will take effect from April 2018. Also, a new scheme has been announced affecting care sector employers who may have underpaid their workers. In case law, we have seen conflicting gig economy employment status judgments involving Uber and Deliveroo and a timely Bill has been published to offer further protection to these atypical workers. New national minimum wage rates As part of the Autumn Budget, Chancellor Philip Hammond confirmed the new minimum rates of pay which will apply from April 2018. In…

Claimants who paid an employment tribunal fee can now start to reclaim their money under a scheme recently launched by the Government. Also, details on the new right to parental bereavement leave have been published, and the EAT looks at whether a disciplinary investigation can be too wide. Tribunal fee reimbursement begins When tribunal fees were introduced in July 2013, the Lord Chancellor announced all fees would be reimbursed if the scheme was found to be unlawful. Following Unison’s successful challenge at the Supreme Court in R (on the application of Unison) v Lord Chancellor, it…

An employer breached an employee’s human rights when it read personal emails sent from the employee’s work email account, says the ECtHR. Also, new legislation is in force from October and, in case law, the EAT departs from the traditional approach to burden of proof in discrimination cases. Monitoring breached privacy rules Organisations should review their policies covering email monitoring following a decision by the Grand Chamber of the European Court of Human Rights Grand Chamber on the lawfulness of an employer’s actions. The ECtHR had previously found that an employer had not…

Listed companies will have to report the ratio between their highest paid executive and an average UK worker from next June and, in case law, the EAT has decided voluntary overtime should be included in holiday pay, and employment status is to be considered by the Supreme Court Executive pay The government is to introduce laws, to take effect by next June, requiring UK listed companies to publish – and justify – the pay ratio between their CEO and their average UK worker. Around 900 companies will be affected. The government also plans to introduce a register, overseen by the Investment…

In a surprise decision, the UK’s highest court has overruled government policy on tribunal fees and quashed the 2013 regulations, thereby raising the prospect of a rise in claims. At the same time, the government-commissioned Taylor report has suggested ways to shape employment law for the future Tribunal fees The fees regime for bringing an employment tribunal claim has been abandoned following a ruling from the Supreme Court on 26 July 2017. The case, R(Unison) v The Lord Chancellor SC [2017], is the culmination of a four-year legal battle, in which the trade union argued that the…

The General Data Protection Regulation will alter the way employers approach automated decision making in recruitment, respond to subject access requests, and obtain consent from employees to their personal data being processed. Victoria Albon, an employment associate at law firm Dentons, explains what those changes are and suggests how HR professionals might deal with them Why change the law? The EU’s General Data Protection Regulation (GDPR) will come into force on 25 May 2018, replacing the UK’s Data Protection Act 1998.   The Act implemented the EU data protection directive nearly…

Recent case law has confirmed that employers should take a flexible approach to testing disabled job candidates. Other cases this month dealt with NHS whistleblowing, statutory union recognition and calculating the correct amount of pay to deduct from teachers on strike Psychometric testing Organisations may need to consider how psychometric testing is used in recruitment, following the successful claim of a lawyer with Asperger’s syndrome applying to join the government’s legal service. She was required to sit a ‘situational judgment test’ which was marked automatically, as it was…

Case law this month underlines the continuing need for employers to have fair and effective policies and procedures, and demonstrates how these can help defend claims, while challenges involving Tupe and the minimum wage show these rules may need tweaking to make them fully fit for purpose Hidden barriers The Supreme Court (SC) has overturned a Court of Appeal (CA) ruling in two cases focusing on group disadvantage in indirect discrimination claims.   The claimants in Essop v Home Office were civil servants required to pass a ‘core skills assessment’ in order to be considered for…

Whether grappling with new minimum wage and statutory pay rates, preparing statements on why men and women appear to be not equally remunerated in their organisations, or keeping an eye on future corporate reporting developments, this spring has plenty to keep HR professionals fully occupied   This month organisations have more changes to contend with than in the past two to three years, and some of these reforms – for example, gender pay gap reporting – look destined to shine a light on the role of HR professionals in a way that could be both a threat and an opportunity. Others – the…

With the new tax year on the horizon, the government has announced increases to statutory rates, tribunal award caps, and NI thresholds. And in the courts, a self-employed plumber has been found to be a worker, and the Lock holiday pay case is returned to an employment tribunal. Statutory rates There is to be an increase to the statutory pay rates for family friendly leave next month (last year the rates remained at 2015 levels).   Statutory maternity, paternity, adoption and shared parental pay will rise from £139.58 to £140.98 a week from 2 April 2017. Statutory sick pay will also…

The focus is on tribunals right now, both in terms of cases due to be heard this year and because the government’s review of the introduction of fees is finally out. While the fees look set to stay, lawyers advise employers to make sure their procedures are not exposing them to claims in the future. Cases to watch A number of cases due to be heard this year have significance for employers.   Uber v Aslam, last heard in November, will be heard again in the Employment Appeal Tribunal. The first tribunal decided the drivers were workers, rather than self-employed, and entitled to working…

Regulations have been published for gender pay gap reporting and balloting, minimum wage increases are announced and, in case law, a works party led to an employee being injured. Public services ballots The government published five sets of draft regulations at the end of last year specifying which ‘important public services’ would be covered by the new balloting requirements under the Trade Union Act 2016. The services covered are: Hospital services, such as A&E, intensive care, psychiatric and emergency midwifery services Teachers of compulsory school age children, and those…