The French government has recently passed a wide set of employment law reforms, as part of the Labour Act (the "loi Travail", Loi n° 2016-1088 8 August 2016) also referred to as the "El Khomri law" (named after Employment Minister Myriam El Khomri).
One of the measures in this Act, picked up in particular by the media, is the so-called "right to disconnect" from IT devices. Similar obligations have in fact already been included for the last 2 years in certain collective bargaining agreements eg, the SYNTEC collective bargaining agreement.
The new legal provisions provide for an obligation to discuss the use of IT devices during the annual negotiations with employee representatives (in the part relating to professional equality and work-life balance), and to review means of ensuring a reasonable use of such devices. In addition, companies employing at least 50 employees will have an obligation to put in place a charter which provides for specific training of executives and directors on the reasonable use of IT devices.
Key points to note are as follows:
Employers should review their working arrangements to ensure they allow workers to take their statutory rest breaks.
Rejecting earlier conflicting EAT authority, the EAT in Grange v Abellio took a purposive approach to the Working Time Regulations in ruling that a worker can bring a claim for denial of their right to a rest break, despite the worker not having made an explicit request for a break which was refused, if the arrangements in effect prevent the worker from exercising their entitlement. This can be contrasted with the position where the worker is able to take a break but chooses not to for their own reasons – employers are not required to force an employee to take a break.
Our July-August 2016 ebulletin highlighted HMRC proposals to change the taxation of termination payments from April 2018, and in particular to provide that all payments in respect of unworked notice be treated as earnings subject to income tax and employer and employee NICs (regardless of whether there is a contractual payment in lieu clause). The Autumn Statement confirmed that the government intends to go ahead with this proposal, but has limited the provision related to unworked notice to cover basic pay only (and not bonuses that might have been paid in respect of that period had the employment continued).
The national minimum wage increases have been confirmed: the hourly rate for those aged 25 or over will be £7.50 from April 2017.
The Department for Work and Pensions has confirmed that, from April 2017, statutory sick pay will increase to £89.35 per week and the flat rate statutory maternity/paternity/shared parental pay rate will be £140.98 per week.
The following new employment law-related resources have been published:
Acas has published workplace guidance on marriage and civil partnership discrimination.
The Equality and Human Rights Commission has published a report on whether the law on religion and belief is working, generally concluding that it is and so not recommending legislative reform. However, it concluded that the law is often misinterpreted by employers, and has therefore published guidance for employers.
Companies engaged in the 'gig economy' should be alive to the threat recent employment law developments could pose to their business model. Where the business involves the provision of a technology platform for a fee, allowing service-providers to offer their services at low cost to customers, this may only be commercially attractive if the service-providers are classified as self-employed. The platform owner may not be in a position to absorb the additional costs of workers' rights (eg, paid holiday, minimum wage while available for work) should the individuals be deemed workers, and increasing the cost of the service to customers may not be sustainable.
The Department for Business, Energy and Industrial Strategy and the Ministry of Justice have jointly launched a consultation on reforming the employment tribunal system, seeking views on how proposals for reform of the wider court and tribunal system should be applied in the employment tribunals and EAT.
Employers should ensure that employees who are breastfeeding are able to express milk at work sufficiently regularly to avoid medical problems (in accordance with medical advice), in a private, clean environment with the ability to store the milk safely. If this is not possible given the employee's role, suitable alternative work or paid suspension should be offered. It is not appropriate to ask employees when they intend to stop breastfeeding.
The Northern Ireland Court of Appeal has ruled that it was direct associative discrimination on the grounds of sexual orientation for a bakery to refuse to supply a cake with a slogan supporting gay marriage.
Employers should consider carefully whether it is necessary to suspend an employee at risk of redundancy and prohibit contact with colleagues or clients from the start of the consultation process.