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.
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.