The (Employment and HR) News Harvest

New & Proposed Extensions to Law

Bereaved parents – new right for paid leave

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.

Pay Gaps: the latest

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:

• UK quoted companies with +250 employees will be required to publish executive pay reports. The Companies (Miscellaneous Reporting) Regulations 2018 will come into force on 1 January 2019 with the first reports expected in 2020.
• Calls to extend gender pay gap reporting obligations to organisations with 50+ employees.
• The Equality and Human Rights Commission is calling for mandatory reporting on disability and ethnicity pay gaps by all employers with +250 staff by 2020. It has published a report including good practice actions.

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.

Data Privacy

160% rise in complaints to ICO

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.

Maximum fine for Equifax following data breach

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 End Line: Resignations & Dismissals

Working lengthy notice period = affirmation of contract

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).

When notice isn’t notice

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.

Discrimination: Useful Rulings

You can prove disability without evidence

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).

Victimisation and bad faith – vital to know

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.

Defective procedure doesn’t always = discrimination

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.

TUPE: Permitted Transfer Changes

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.

Useful Resources, Reports & Surveys

No Brexit deal? Workplace rights

• The Government has produced guidance on workplace rights in the event of no Brexit deal.

Postponement of Tribunal hearings

• A Freedom of Information request by People Management reveals that 3,365 employment tribunals were postponed within 48 hours of the hearing between 1 August 2017 and 31 March 2018.

Mental Health at Work

• Mind and Prince William have launched a new online gateway: Mental Health at Work. It includes several free resources and is designed to help workplaces improve staff wellbeing.

Recent mental health surveys

Recent surveys have shown some worrying trends particularly regarding employees’ ability to “switch off”:

• A survey of 44k staff, by Mind, has found that 48% of workers have experienced a mental health problem in their current role. Only half of those felt able to speak to their employer.
• A study of 5k Chiltern Railways users shows commuters regularly dealing with work emails on their commute. Some commuters “rely” on that time and use it as a “buffer” between work and home. Internet access has extended working hours. Should working commutes count as part of the working day?
• 46% of employees feel under pressure to prove that they are working, while working from home, a survey has found. Additional measures include working longer hours and being “more responsive” on email. This is despite many suggesting they were more productive (and happier) working remotely.

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.