The (Employment and HR) News Harvest
The Parental Bereavement (Leave and Pay) Act 2018 has received Royal Assent. It’s expected to come into force in 2020. All employees will have a day one right to two weeks’ leave if they lose a child under the age of 18 or suffer a stillbirth from 24 weeks of pregnancy. Eligible employed parents (eligibility includes minimum 26 weeks’ continuous service and meeting the lower earnings threshold) will also be able to claim statutory parental bereavement pay for this period. It is anticipated that additional Regulations will be provided to expand on the core provisions in the Act.
As you know, organisations with 250+ employees must publish annual data comparing men and women’s average pay. There are further proposals on the horizon, including:
You should keep these in mind as we have already seen many businesses struggling with existing reporting requirements. We will keep you updated. The following is also worth considering in the meantime:
The Government Equalities Office guide for employers to reduce the gender pay gap and improve gender equality. It identifies 6 key effective actions, which have been tested and found to have a positive impact.
An EMW Law LLP report shows that complaints to the Information Commissioner’s Office about potential data breaches have risen by 160% since GDPR came into effect in May 2018. There were 6,281 complaints between 25 May and 3 July 2018. This is staggering.
Further, the ICO is seen to be imposing large fines. It has just issued a £500k fine against Equifax Ltd for a 2017 cyber breach. This was the maximum fine possible under legislation in place at the time. The fine was imposed due to: number of victims (15m), type of data at risk and failing to adhere to its own policies and controls. Several failures were identified. Equifax Ltd failed to take appropriate steps to ensure its American parent, Equifax Inc (which processed the data on its behalf), was protecting the information. Equifax Inc had previously been warned about a vulnerability but failed to take sufficient steps.
You must have a sound data privacy framework in place in your organisation. One option is to use our comprehensive Employment-related Data Privacy toolkit.
The Claimants (“C1” and “C2”) resigned in March 2018 following alleged repudiatory breaches of contract. They intended to work their full notice periods (12 and 6 months, respectively). Following further alleged repudiatory breaches (r.e. pay and an unjustified misconduct finding), they resigned with immediate effect in May 2018. The High Court noted: where an employee resigns on notice following a repudiatory breach – and the notice period amounts to 6+ months – this constitutes acceptance of the employment contract. However, further breaches during the notice period may be considered. C1 and C2 were entitled to damages for the May breaches only (Brown & Anor v Neon Management Services Ltd & Anor).
In East Kent Hospitals University NHS Foundation Trust v Levy, the Claimant (“L”) received a conditional offer for a new role in the same organisation. She wrote to her manager, saying “Please accept one month’s notice from the above date”. Her notice was accepted. The new role offer was withdrawn. L tried to retract her notice but was refused. The Employment Appeal Tribunal held that although use of the word “notice” might normally signify notification of termination of the employment contract, here, the wording was not unambiguous. Crucially, words such as “resignation” or “termination” had not been used. The notice signified an intention to accept a conditional offer, not to terminate employment. Bear this in mind if an employee is moving roles within your business. If you receive an unclearly worded notice, obtain clarification if tactically it is best to know.
Under the Equality Act 2010, the Claimant must demonstrate that his disability has a substantial adverse effect on his ability to carry out normal day to day activities. The Claimant (“M”) did not indicate any disability on his application form or later health form. He sought to rely on an Essential Hypertension impairment to avoid regular night shifts. M had made unspecified references to a “health condition” and had 4 days’ absence. This should have put the Respondent on notice to make further enquiries. However, it was not sufficient to infer the Respondent’s constructive knowledge of disability (plus, M had previously worked night shifts and accepted a further booking). At trial, M claimed disability discrimination but did not produce the necessary evidence. The Employment Appeal Tribunal upheld findings that M was not disabled. Even had he been, the Respondent did not know and could not reasonably have known of M’s disability (Mutombo-Mpania v Angard Staffing Solutions Ltd).
In Saad v Southampton University Hospitals NHS Trust, the Claimant (“S”) submitted a grievance, about a racially discriminatory remark, when he was likely to fail a qualification assessment. Under the Equality Act 2010, a victimisation claim will not be upheld if made in bad faith. S’s claim failed. The Employment Appeal Tribunal upheld S’s appeal: regarding bad faith, the important question is whether the Claimant acted dishonestly. S subjectively genuinely believed the allegation to be true (although there were no reasonable grounds for this belief). This was sufficient to counter the suggestion that he acted in bad faith. S may have had an ulterior motive making the allegation but this did not equal dishonesty.
In Dunn v Secretary of State for Justice & Anor, the Claimant (“D”) was disabled. A prisons inspector, he applied for ill health retirement (“IHR”). D filed claims regarding how his long term absences were dealt with by management and the drawn out process for dealing with his IHR application. The Court of Appeal found there was a long delay dealing with D’s application. It was not disputed that it was badly handled, to D’s distress. However, there was no disability discrimination. D’s disability did not cause the Respondents to act, or fail to act, in the manner complained of. Even if the IHR process was inherently defective it was not automatically inherently discriminatory.
In Tabberer & Ors v Mears Ltd & Ors, an employer was entitled to remove an “outdated and unjustified” travel allowance clause from employee contracts following a TUPE transfer. The Respondent gave notice to vary the Claimants’ contracts to remove the clause. Any reference to unfairness in the notice meant the need for fairness across different job groups, not a desire to harmonise terms and conditions within an occupational group. That the payment was outdated was a pre-existing belief. The Employment Appeal Tribunal held that the reason for ending the allowance was not connected with the transfer: the variation was not void. Where TUPE applies, what is important is the genuine reason behind a decision to vary a contract.
Recent surveys have shown some worrying trends particularly regarding employees’ ability to “switch off”:
Make sure you have effective policies and procedures in place to manage employee wellbeing. We can help.
If you need practical solutions on how to deal with any of the issues raised, do feel free to make contact.
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