The government recently published the General Scheme for the Parental Leave and Benefit Bill. The bill provides for a paid parental leave benefit, which must be used within the first 12 months of a child's life or 12 months from the date of adoption. In light of these changes, employers should not only consider whether they should top up the parental leave benefit, but also review their family leave policies more generally to ensure that their business is in line with the latest developments.
A recent Supreme Court decision clarifies the legal principles to be applied to the question of which measures of reasonable accommodation an employer should consider to enable disabled employees to participate in the workforce. While the decision provides welcome guidance on the applicable principles, employers must consider that what constitutes 'reasonable accommodation' will depend on the facts, guided by the reasonableness and proportionality of any appropriate measures proposed.
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.
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.