REUTERS | Stoyan Nenov
May 18, 2017

Court of Appeal clarifies scope of whistleblowing protection

The Court of Appeal has recently clarified the scope of whistleblowing protection provided by Part IVA of the Employment Rights Act (ERA) 1996 in Day v Health Education England & others [2017] EWCA Civ 329.

Whistleblowing protection is afforded to employees and workers, and an extended definition of worker set out under section 43K ERA 1996 covers persons who perform work but do not fall within the general concept of worker found in section 230(3) ERA 1996. This includes individuals supplied by an intermediary, provided the terms of their engagement are substantially determined by the end-user and/or intermediary. Accordingly, protection is provided to workers in multi-party relationships, including agency workers and individuals who contract with employment businesses to perform work via personal service companies. Continue reading →

REUTERS |
May 16, 2017

Clocks and compliance: recalculating time limits for early conciliation

If there is something that employment lawyers can be sure of in the uncertain world of employment law, it is that attempts to prescribe dispute resolution procedures only generate further dispute.

That was the fate that befell the statutory disciplinary and grievance procedures that were unceremoniously axed in 2009. The Acas early conciliation (EC) procedures are proving no less contentious, particularly in relation to the calculation (or, to be more precise, the recalculation) of time limits. Continue reading →

REUTERS |
May 10, 2017

Skeletons in the cupboard? Balancing competing interests under the FCA’s reference regime

The pace of change is swift in financial services regulation. No longer is the regulator the arbiter of fitness and propriety; the senior managers and certification regime (SM & CR) leaves responsibility firmly at the feet of the financial institution. Difficult calls are being made by firms who are required to assess the fitness and propriety of a significant proportion of the people they employ at all stages of the employee life-cycle. Take the offer of employment for example. Continue reading →

REUTERS | Yves Herman
April 27, 2017

Employment highlights: April 2017

General election. Parliament will be dissolved on 3 May prior to a snap general election to be held on 8 June. Although it was previously thought that the Finance Bill would be pushed through unamended, the government has in fact dropped the changes to the taxation of termination payments (as well as other controversial measures of less interest to employment lawyers) as part of the “wash-up”, to ensure that essential parts of the Bill are passed before dissolution. If there is no change in government we expect to see this in another Finance Bill later this year. The Public Sector blog contains more information on the wash-up process.

Discrimination. In the conjoined cases of Essop and Naeem, the Supreme Court restored orthodoxy following the Court of Appeal’s controversial ruling, and held that in cases of indirect discrimination, there is no need to establish the reason for the “particular disadvantage” suffered by the protected group. Continue reading →

REUTERS | Shannon Stapleton
April 19, 2017

Gender pay gap reporting: beware Simpson’s Paradox

It has not taken long for “gender pay is not equal pay” to become an employers’ (and an employment lawyers’) mantra.

The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172) require employers with 250 or more staff to publish, by no later than 4 April 2018, six key pieces of information including their mean pay gap, their median pay gap, their mean bonus gap and their median bonus gap, based on “snapshot” payroll data as at 5 April 2017. Many employers are already finding that their headline numbers paint a difficult picture: a significant pay gap, often widening to a chasm on bonuses. Continue reading →

REUTERS | John Kolesidis
April 12, 2017

Industrial action and employees’ journeys to work: implications for employers

The recent rejection by train drivers of the deal offered to end the long running industrial action affecting Southern rail raises the spectre of further strikes and additional disruption to many people’s journeys to work. There have been reports of businesses closing and employees losing jobs, as well as suggestions that industrial action may spread to other parts of the country. All in all it promises to be a long, hot summer for employees (and employers) located in areas affected by any strikes. Continue reading →

REUTERS | Gleb Granich
April 6, 2017

When employers must wait “a little longer”: lessons from the Court of Appeal on long-term sickness dismissals

In O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145, the Court of Appeal gave some useful lessons for employers (and employment lawyers) who are considering the thorny area of when it is reasonable and proportionate to dismiss an employee on long-term sickness whose prognosis is uncertain.

Background

Ms O’Brien, Head of Department at Bolton St Catherine’s Academy, had been on sick leave for over a year when her employment was terminated on the grounds of capability. She had been assaulted by a student, resulting in her long term absence for stress.  A significant factor in the decision to dismiss was Ms O’Brien’s uncertain prognosis regarding a return to work.  Her employer had requested information about her prognosis, but did not receive a satisfactory response. Continue reading →

REUTERS | Phil Noble
March 30, 2017

Employment highlights: March 2017

Brexit. On 29 March 2017, the Prime Minister gave the European Council the Article 50 notification of the UK’s intention to leave the EU. In the absence of any agreed extension, the UK will leave the EU at midnight on 29 March 2019. Visit the Practical Law Brexit page and the Thomson Reuters Brexit resources for legal professionals for more information. Plans for the “Great Repeal Bill” are unfolding but the Brexit Secretary, David Davis, has attempted to clarify the proposed status of ECJ judgments and has also stated that there will be no cap on working EU migrants.

Discrimination. This month, the ECJ handed down two judgments concerning bans on the wearing of Islamic headscarves within the workplace. In Achbita, the ECJ held the headscarf ban was not direct discrimination if it was part of a ban on all visible religious symbols. However, it may constitute indirect discrimination. In Bougnaoui, the ECJ held that a customer’s objection to an Islamic headscarf could not be a genuine and determining occupational requirement justifying less favourable treatment. The employee’s dismissal for refusing to remove the headscarf was therefore directly discriminatory. Continue reading →

REUTERS | Tobias Schwarz
March 16, 2017

Gender pay reporting: observations on some practical difficulties

In just a few weeks, the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172) will be in force, and the 5 April snapshot date around which affected employers’ first gender pay gap reports must be based will have passed. Employers, and their lawyers, have had some time to pore over the Regulations and accompanying Acas Guidance. Now, as employers gather their pay data and put the Regulations’ detailed calculation provisions into practice, previously unforeseen complications are likely to arise. Here, we focus on those we feel may cause particular problems.

Unrepresentative hourly rates for employees with variable hours

The main gender pay gap calculations (mean, median and distribution across pay quartiles) are based on the hourly rate of pay. In order to calculate an employee’s hourly rate of pay, the employer must take the (ordinary and appropriately pro-rated bonus) pay received during the relevant pay period, multiply it by an appropriate multiplier (7, divided by the number of days in the relevant pay period), then divide by the employee’s weekly working hours (regulation 6). Continue reading →