The rules and regulations surrounding employment law are constantly moving and keeping up to date with the developments can be a mesmerising task for HR professionals.
Wake Smith’s employment team provides advice and strategic guidance on a wide range of employment law issues and HR matters.
Here, Mark Serby, director in employment and dispute resolution at Wake Smith looks at the 10 most recent interesting developments in and around employment law.
Theresa May and David Davis MP on the future of employment law
Theresa May in her speech on appointment as Prime Minister mentioned employment rights. She spoke about the need for job security and equal pay.
Theresa May also made a speech on 11 July 2016, two days before her appointment, pledging to include worker representatives on company boards. She said: “If I’m prime minister, we’re going to change that system – and we’re going to have not just consumers represented on company boards, but workers as well.” Workers are represented on the boards of companies in many European countries including Germany, Denmark and Sweden.
David Davis MP has been appointed to the new cabinet position of secretary of state for exiting the European Union. In a post on Conservative Home, he made clear that he had no desire to reduce the current impact of EU employment law in the UK.
Carrying over paid annual leave when sick
Whether leave has been scheduled or booked makes no difference: if sickness prevents annual leave, workers must be able to use annual leave at a later date.
In the case of Sobczyszyn v Skola Podstawowa w Rzeplinie, Ms Sobczyszyn, a teacher, took convalescence leave and was unable to use her annual leave. The school said that leave had been used during convalescence.
Article 7(1) of the Working Time Regulations provides four weeks’ annual leave for every worker which is a fundamental tenet of EU social law. Only on termination can payment be made in lieu. Annual leave accrues during sick leave. If scheduled leave coincides with sickness, a worker can designate a different time to take leave. The purpose of paid leave is rest and relaxation. Sick leave is for recovery from illness, it is not rest; annual leave can be rescheduled on recovery.
Nearly one in six workers are in insecure work
Analysis of ONS statistics by Citizens Advice has found that nearly one in six workers are in insecure work.
More than 2.3 million people are working variable shift patterns, 1.1 million are on temporary contracts and 800,000 are on either zero-hour or agency contracts.
The number of workers on a zero hours contract for their main job has continued to increase, with 104,000 more workers on the contracts than the previous year.
National Living Wage: more employees see benefits cut
Zizzi has now been accused of replacing free-food allowances with a cut-price menu and of reducing the amount of tips passed on to waiting staff.
In Grimsby, Icelandic Seachill has allegedly paid for the national living wage by cutting overtime and weekend rates, with staff who refuse to enter into new contracts threatened with dismissal.
Protected conversations
The purpose of protected conversations is to enable employers and employees to have a private off the record discussion that is without prejudice to any future developments. In simple terms they are meant to be secret and cannot be referred to at a later date if the discussions do not bear fruit.
Can the privilege that covers ‘protected conversations’ under Section 111A ERA be waived?
No, held the EAT giving the first appellate judgment on ‘protected conversations’ in Faithorn Farrell Timms LLP v. Bailey.
The EAT held that the protection of S111A extends not just to the content of protected conversations (e.g. an offer) but also the fact of them taking place, a protection broader than with ‘without prejudice’ discussions. Furthermore, an employer’s internal discussions about a protected conversation (e.g. between management and HR advisers) could also be protected.
Employment Tribunal fees review
As Unison prepares its judicial review on Tribunal fees, the House of Commons Justice Committee has published its review into Court and Tribunal Fees.
- There has been a significant drop in the number of employment tribunal claims.
- The government’s assertion that the drop is largely attributable to the success of ACAS Early Conciliation is ‘even on the most favourable construction, superficial’ (para 69)
- Fees ‘have had a significant adverse impact no access to justice for meritorious claims
- The ‘type A’ and ‘type B’ claim distinction did not relate to the complexity or length of cases (para 73)
- The level of fees should be ‘substantially reduced’ (para 79)
- The remission system should be overhauled, with only one application needed (to cover both issue and hearing fees)
TUPE: Service Provision Change
For a service provision change TUPE transfer, there must have been, prior to the change, an organised grouping of employees, the principal purpose of which was to carry out the relevant activities for the relevant client.
In Amaryllis Ltd v McLeod the EAT considered that the principal purpose of any organised grouping of workers must be assessed at the point immediately before the change of provider, and not historically.
Millbrook Furnishings Ltd carried out work for the Ministry of Defence (MoD) for many years renovating wood and metal furniture. Between 2003 and 2008 it did so as a subcontractor to Amaryllis. From December 2012 the MoD awarded new contracts under a framework agreement. in 2014 the furnishings renovations contract was retendered among four contractors on the framework agreement. Millbrook was unsuccessful on the retender and, instead, the contract was awarded to Amaryllis.
The question was whether there was an organised grouping of employees in place prior to the transfer to work to Amaryllis, the principal purpose of which was to carry out the activities concerned on behalf of the MoD.
It was accepted that Millbrook’s employees were spending just shy of 70% of their time on the MoD renovations contract. Nonetheless the Employment Judge considered that it was appropriate to consider evidence relating to the past. The Employment Judge was satisfied that the department had originally been set up with the specific purpose of servicing the MoD contracts, and although that grouping now serviced other customers, the MoD was still the largest customer. He found TUPE applied.
Amaryllis appealed. The EAT upheld the appeal. It was not sufficient that a department carries out significant work for a client. It must be organised for the principal purpose of carrying out that work for the client. The relevant time is immediately before the transfer.
The Employment Judge was wrong to look at the matter on an historic basis. And, it was incorrect to take into account work done on furniture renovation by Millbrook between 2003 and 2008 when Millbrook was a subcontractor of Amaryllis. During this time the MoD was not a client of Millbrook. Millbrook’s client for this work was Amaryllis. That period could not be taken into account since, even if there were, during that period, an organised grouping of employees, the grouping concerned was not dedicated to carrying out the activities for the relevant client.
Former City Link workers awarded 90 days’ pay
An employment tribunal has ruled in favour of former City Link workers who established that City Link failed in its statutory duty to consult with them about impending redundancies. The tribunal made protective awards of 90 days’ pay.
Research on shared parental leave impact
On 1 June 2016, Xpert HR Benchmarking published research on the impact of shared parental leave. The research was based on a survey of 397 organisations with a combined workforce of around 828,000 employees. Key findings from the research include:
- The average shared parental leave taken over the year to 5 April 2016 was 12.4 weeks per employee
- Those in the public sector are more likely to make requests than their private sector counterparts
- 60% of employers disagreed that more fathers had been encouraged to take shared leave
- More than one in three disagreed that shared parental leave is seen as an affordable option by all eligible employees
- Employers that enhance shared parental pay are twice as likely to receive a shared parental leave request
Jeremy Hunt to impose new contract on junior doctors
Jeremy Hunt has said he will impose a new contract on the 54,000 junior doctors in the NHS in England, after they rejected it in a ballot.
Around 37,000 doctors in training and final, and penultimate-year medical students, took part in the BMA’s ballot - 68% of those eligible to vote.
Hunt’s decision could lead to two separate, but related, legal actions being restarted in the High Court in London, both of which had been stayed pending the outcome of the ratification ballot.
One, initiated by five campaigning junior doctors called Justice for Health, contends that Hunt has no legal power to impose the contract. Justice for Health argue that the Secretary of State only has power to recommend that NHS bodies use this contract but no power to impose it.
The other, begun by the BMA, challenges the legality of the contract on gender equality grounds. Clarification on both is expected soon.
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