Employment Law Update

Stuart Chamberlain

PPMA 6 November 2015

Today’s programme

Recent legislation

What’s in store? – 2016 and beyond

Selected case law

Review of recent legislation

1. Family Friendly policies

Shared Parental Leave: 5 April 2015

Take up rate?

Complex rules

Potential problems?

To be extended to working grandparents

1. Family Friendly policies cont.

Parental Leave extended: 18 weeks’ unpaid leave for children 5-18

Adoption leave & pay

Removal of service requirement

Pay mirrors SMP

Appointments

“Fostering for adoption” scheme

2. Zero Hours contracts

Exclusivity clauses(May 2015) – only legislative provision so far

Definition of zero hours contract

( Coalition)Government review of employment status – clarification?

3. Changes on 1 October 2015

ET’s powers of general recommendations in successful discrimination cases limited to references to claimant, not organisation as a whole

Increases in NMW rates

Right of Sikhs to wear turbans instead of safety helmets extended

Ban on smoking in cars if carrying children under 18

What’s in store? – 2016 and beyond

For the public sector:

Trade Union Bill

[EU Referendum Bill]? No later than December 2017 (May 2016?)

Public sector exit payments

and:

ET procedures re. postponements

National Living Wage (April 2016): impact?

Gender Pay Gap Reporting(March 2016)

Caste discrimination

Childcare payments

Immigration Bill- public authorities to ensure that workers in customer- facing roles speak fluent English – to be supported and enforced by Codes of Practice

Trade Union Bill

Proposes changes to the TULR( C)A 1992

Three consultations:

1.Ballot thresholds in important public services

2.Tackling intimidation of non-striking workers

3.Hiring agency workers during strike action

These consultations closed 9 September 2015

Trade Union Bill: 1. Higher threshold for ballots

Valid ballot mandate for strike action – 50 % turnout and retain simple majority for action

Higher test in “important public services” (6 sectors: fire; health; education; transport; border security; and, nuclear decommissioning): 40% of all eligible voters must vote in favour of industrial action. This is in addition to 50% participation threshold

Ballots cont.

Minimum of two weeks’ notice ( 14 days) of strike action

Voting paper to identify the dispute & specify the type and duration of proposed industrial action

Time limit of 4 months for industrial action following the ballot

2. Preventing intimidating pickets & protests

“Leverage” campaigns – e.g. Incos refinery in Grangemouth – the Carr report in 2014

Pickets to be supervised by named official

Failure to comply means that trade union and members will not be protected from legal proceedings

Potentially enforceable by injunction

3. Trade Union Bill: other proposals

Trade unions to provide in annual return on amount of industrial action taken in each dispute

Opting – “in” to political fund

Extension in the role of the Certification Officer

Greater scrutiny of trade unions’ internal governance

Repeal of the ban on the use of agency workers for those on strike

4. Trade Union Bill:“Facility time” in the public sector

Public employers to publish information about the time taken by trade union representatives for trade union duties and activities ( known as “facility time”.

Guidance from Explanatory notes to the Bill

5. Trade Union Bill: Timescale?

Next Spring (2016) – at the earliest

Ban on use of agency workers could be repealed earlier

Public Sector Exit payments – Enterprise Bill

{ Note also under SBEE Act : The Repayment of Public Sector Exit Payments Regs. 2015 (1 April 2016)]

Cap of £ 95,000 will apply to all public sector workers

All forms of exit ( including voluntary and non-voluntary redundancy) subject to cap

Will apply to total, before tax, of all exit payments – untaken leave and compensation for injury/ill-health excluded

Subject to future review

Further detail to come in regulations.

Selection of case law

1. Legal challenge to ET fees

R (Unison) v Lord Chancellor

CA dismissed the challenge based on ‘access to justice’

Appeal to the Supreme Court?

In the meantime – two reviews ( Government and H of Commons Committee)

And the Scottish dimension?

2. Social media

The British Waterways Board v Smith

Confirm that no special rules in such cases – usual unfair dismissal rules apply

Dismissal must be within the ‘band of reasonable responses’ – not a high threshold for the employer

All cases emphasize the need for the employer to have an effective social media policy

3. HR’s role in disciplinary proceedings

Ramphal v Department of Transport

A reminder of the limits of HR’s role

Inappropriate to influence decision as to issues of culpability

Disciplining officer can seek guidance and advice from HR

4. Working time

1.Holiday pay & ‘normal’ pay

—Williams v BA [2003] – all sums that were taxable

—Lock v British Gas - commission

—Bear Scotland v Fulton – non-guaranteed overtime

Link between components of total remuneration and performance of tasks under contract of employment

Tempered by Deduction from Wages Regulations 2014: backdated claims for unlawful deduction of wages limited to 2 years.

4. Working time

2. Time spent ‘on call’

ECJ decisions: SIMAP [2000] and Jaeger [2003]

MacCartney v Oversley House Management [2006]

Truslove v Scottish Ambulance Service [2014]: a requirement to be within 3 miles of the base station with a target of a response within 3 minutes rendered the on-call time working time

4. Working time

3. Time spent travelling to & from work

Federacion de Sericios Privados del Sindicato Comisiones Oberas v Tyco Integrated Services [2015]:

Time spent travelling between first and last assignments of the day represents working

time. Impact?

4. The NMW & relationship with WTR

Whittlestone v BJP Home Input Ltd [2014] – work for the purposes of the NMW not to be determined by European law ( WTD) or common law.

Some conclusions/thoughts on working time cases

Will continue to be a big employment law issue in 2016? Even more claims?

Contractual claims?

Impact of new National Living Wage?