The FCA and PRA have recently published new rules on whistleblowing procedures for UK branches of foreign banks and insurers, which will apply from 7 September 2017. UK branches will need to ensure their staff are informed of the option of reporting to the regulators, and given access to the internal whistleblowing arrangements of any UK group company. Staff handbooks or policies will also need to be updated. See our briefing here for further details.
Employers should note that agency workers may be able to bring whistleblowing claims against both the end-user and the third party introducer. The fact that an individual is a worker for one party does not inevitably prevent them from also being a worker (under the extended definition for whistleblowing purposes) for another party. The Court of Appeal has agreed with an earlier EAT ruling (McTigue, summarised in our blog post here) that an agency worker can be a 'worker' for whistleblowing purposes for both end-user and agency, where between them they have 'substantially determined' the worker's terms. (Day v Health Education England)
A recent Court of Appeal decision has highlighted the need for caution when dismissing an employee for making a disclosure. If objectively the tribunal determines that it was a protected disclosure, the dismissal will be automatically unfair even where the employer believed the disclosure was not protected, perhaps because in its view the disclosure was not made in the public interest. (Beatt v Croydon Health Services NHS Trust)
Europe: Statutory holiday pay claims- EU Advocate-General publishes opinion on workers denied paid holiday
The ECJ Advocate-General has given his opinion in King v The Sash Window Workshop that employers must make ‘adequate facilities’ (eg, contractual rights or administrative procedures) available to workers in order that they can take annual leave. If those facilities are not made available then workers can claim payment in respect of the 4 weeks' EU-derived statutory annual leave up to the point they are made available or, if they are not made available, up to the termination of their employment, with no limits on carryover.
Employers will welcome a recent EAT ruling in relation to claims for statutory holiday pay, which must be brought within three months of the end of each 'series' of underpayments. The EAT treated as binding precedent an earlier EAT decision that a gap of three months between underpayments breaks the 'series' of deductions.
UK: Recruitment – employers may need to consider adjustments to psychometric testing or other processes which could disadvantage disabled candidates
Employers should give careful consideration to requests to adjust recruitment processes where a disabled applicant asserts that the particular method chosen puts them at a disadvantage. A lack of flexibility is likely only to be justified if the employer can show that the specific test correlates exactly with a core competency of the job, and that competency cannot be demonstrated in another way which does not put the applicant at a disadvantage. If the effect of the disability is not clear, employers will either need to seek detailed medical evidence or give the applicant the benefit of the doubt. Adjustments could be giving extra time, or allowing alternative means of demonstrating a capability.
UK: Indirect discrimination – Supreme Court ruling makes it easier for claimants to establish prima facie indirect discrimination
Employers should review whether their policies and practices could be disadvantaging employees with a particular protected characteristic. The Supreme Court has ruled that statistics showing a disparate impact may be enough to get an indirect discrimination claim off the ground; there is no need to establish why that particular group is disadvantaged by the policy, that the claimant suffers disadvantage for the same reason, or that all of the group are disadvantaged in the same way. It is enough for the claimant to produce statistics showing that the group is disadvantaged and that the claimant is a member of that group and also suffered the disadvantage. It will then be for the employer to show that it was something other than the policy that caused the claimant's situation, or to justify the policy.
A tribunal has ruled that an employer's failure to enhance pay for shared parental leave (SPL) to the same level as enhanced maternity pay is direct sex discrimination.
Employers who enhance maternity pay but not shared parental pay should be aware of a first instance decision that, if upheld on appeal, could require them to change their approach. The tribunal in Ali v Capita Customer Management Limited has upheld a father's direct sex discrimination claim in relation to his employer's refusal to pay him 12 weeks' full pay during shared parental leave, when a mother taking maternity leave would have been entitled to 12 weeks' full pay (in addition to 2 weeks' fully paid compulsory maternity leave).
In an important Full Court appeal decision, Bromberg J’s decision in Director of the Fair Work Building Industry Inspectorate v Powell  FCA 1287 was overturned in the Federal Court last week.
In the first instance decision, Bromberg J found that a union official did not have to have a federal right of entry permit under the Fair Work Act 2009 (Cth) when entering a site as an assistant to a health and safety representative (HSR) because the Occupational Health and Safety Act 2004 (Vic) (OHS Act) did not confer a ‘right’ to enter premises on the union official for the purposes of section 494. Section 494 of the Fair Work Act prohibits a union official from exercising a “State or Territory OHS right” unless the official is a federal permit holder.
HR practitioners will be aware that work rules are mandatory in certain jurisdictions in Asia once an employer reaches a specified number of employees. However, an often-overlooked area is whether employers must or should establish other types of employment-related policies in addition to such work rules.
This month, as the first of a two-part series on this topic, we consider whether there are any mandatory employment-related policies which employers must establish in Singapore, Malaysia, the Philippines, Hong Kong, the People's Republic of China, South Korea and Taiwan.