The government has this morning issued a press release announcing its response to the independent Taylor Review published last year (see our summary here). The government has given a general commitment to pursue quality of work in addition to number of jobs, but specific proposals are largely limited to better information about and enforcement of rights; decisions on substantive changes to rights have mostly been deferred for yet more consultation. The press release only mentions firm proposals for the following new rights: Continue reading
Employers in certain sectors can rely on the exemption from the ordinary rest break requirements in the Working Time Regulations (or 20 minutes for every 6 hours worked) as long as they provide equivalent compensatory rest. The EAT has confirmed that, in the same way as for ordinary rest breaks, compensatory rest breaks must be a continuous uninterrupted period of at least 20 minutes and cannot be satisfied by a number of shorter breaks totalling more than 20 minutes. Organisations that rely on the compensatory rest provisions should review their policies to ensure compliance. (Crawford v Network Rail Infrastructure)
Two recent decisions – along with the imminent implementation of the GDPR – highlight the importance for employers of reviewing monitoring practices and policies. In Antović and Mirković v Montenegro, the European Court of Human Rights (ECHR) ruled that it was a breach of two professors’ privacy rights to install surveillance cameras in student auditoriums, with a view to protecting the safety of property and people and monitoring teaching. The ECHR stated that private life may include professional activities taking place in a public context and that the auditoriums should be treated like any other workplace. Given the intrusion that workplace surveillance represents (whether covert or not), the employer here had insufficient justification given that there was no evidence that people or property had been at risk.
UK: Collective bargaining – no obligation on ‘de facto’ employer; risks of direct negotiation with employees
In Independent Workers Union of Great Britain v University of London the Central Arbitration Committee has decided that a union representing employees of an outsourcing company was not entitled to collectively bargain directly with the university to whom their services were supplied. This was so even if the university “substantially determined” the workers’ terms: recognition can only be sought from an employer in respect of its ‘workers’ and to be ‘workers’ individuals must have a contract with the employer. There was no contract here between the university and the individuals (and indeed their employer already recognised a different union for collective bargaining on their behalf). The CAC did not rule on the union’s argument that this is incompatible with Article 11 of the European Convention on Human Rights, as it has no power to make a declaration to that effect.
UK: Disability – employers acting on wrong assumptions about medical conditions risk perceived disability discrimination claims
Employers should take extra care when considering rejecting a job applicant because of a concern that a health condition is likely to deteriorate (even if that view is wrong). The statutory definition of disability includes progressive conditions which have an effect on ability to carry out normal day-to-day activities but this effect is not yet – but is likely to become – a substantial adverse effect. An employer’s concern based on an incorrect belief that the condition is likely to deteriorate may amount to a perception that the candidate has such a progressive condition; this will be a perception of disability as defined by statute and therefore an unlawful ground for refusing the candidate. It is not necessary to show that the employer knew the legal definition of disability and considered it satisfied, only that it thought the individual had an impairment with the features necessary to satisfy the definition.
UK: Whistleblowing – rulings on claims against colleagues working abroad, the importance of the employer’s and whistleblower’s motivation, and scope of remedy for detriment
- In its first ruling on the issue, the EAT has ruled that an employee can bring a whistleblowing detriment claim in an English employment tribunal against their colleagues working overseas provided the “substantial connection” test (previously only applied to claims by an overseas employee against their employer) is satisfied. The tribunal has to assess the strength of the connection between each individual respondent and Great Britain and British employment law. In this case there was a sufficiently strong connection where the claimant and her colleagues all worked under English law contracts with the UK Government in an EU mission in Kosovo. (Bamieh v EULEX)
Employers currently contemplating or negotiating termination agreements should be aware of changes to the tax regime which will apply for the 2018-19 tax year onwards. The expectation was that these will apply to payments received from 6 April 2018, although we understand that HMRC have advised that the new rules will only apply where the employment terminates on or after 6 April. HMRC have also stated that they are in the process of drafting detailed guidance on the application of the new rules and hope to publish it in the Employment Income Manual before 6 April. Once there is clarity on the date, employers will need to start factoring in the new rules when considering the timing and negotiation of termination payments.
The 4th April 2018 deadline for publication of employers’ first year of gender pay gap data is looming, yet over 90% of employers covered by the new statutory duty have still not reported. Many may have deliberately chosen to publish close to the deadline, perhaps in the hope that in the early April deluge their data will slip unnoticed through the net of media attention. Whether this strategy will itself attract negative publicity may depend on whether the GEO goes ahead with its original plan to publish three lists of employers “in early 2018”: those who have reported, those who have “demonstrated that they are on track to report” by registering on the government website (possibly as at 31 January), and those who have not yet registered. Employers who are not yet ready to publish may want at least to register to avoid being on the third list.