UK: The UNISON tribunal fees ruling – has Lord Reed opened the floodgates?

There has been considerable speculation as to the likely effects of the Supreme Court’s decision in R (on the application of UNISON) v Lord Chancellor to declare invalid the Government’s system of tribunal fees. Given the cogent evidence presented by UNISON that this system of fees had resulted in a marked fall in the number of claims, logically the abolition of this system should lead to a marked rise in the number of claims. Anecdotally there is some evidence of a rise in the number of claims in various tribunals but it might perhaps be doubted whether the number of claims will rise to the levels that appertained prior to the introduction of fees.

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Filed under Employment-related claims- procedure and form, Jurisdiction: UK

UK: Tax evasion – New corporate criminal offence of failure to prevent facilitation of tax evasion

Two new corporate criminal offences of “failure to prevent” the facilitation of UK and foreign tax evasion, contained in the Criminal Finances Act 2017, came into force on 30 September 2017. A body corporate or a partnership (a “relevant body”) may be prosecuted for failure to prevent the facilitation of tax evasion if:

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UK: New Resources

New presidential guidance has been issued in relation to how employment tribunals should calculate pensions loss and awards for injury to feelings in discrimination cases, available here. There are three bands for injury to feelings, with a usual minimum of £800 and maximum of £42,000 (save for exceptional cases); these will be reviewed in March 2018 and annually thereafter.

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Filed under Employment-related claims- procedure and form, International mobility (including secondments, migrant workers, territorial jurisdiction), Jurisdiction: UK, Workplace culture, diversity and discrimination (including bullying and harassment), Workplace flexibility and family-friendly rights

UK: Corporate governance – Government response to consultations on reform proposals

The Department for Business, Energy and Industrial Strategy has published its response paper on UK corporate governance reform, following on from the green paper which it published in November 2016.

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Filed under Industrial/workplace relations, collective bargaining, works councils, Jurisdiction: UK, Remuneration (including bonus and incentive plans), Whistleblowing

UK: Pay gap reporting – EHRC recommendations and HSF review of gender pay gap reports published so far

The Equality and Human Rights Commission has recently published research into gender, ethnicity and disability pay gaps, along with a strategy for reducing those gaps, available here. The strategy’s recommendations include Government legislation to make the right to request flexible work available from day one (rather than after 26 weeks as currently) and to introduce non-transferable ‘use it or lose it’ parental leave for fathers paid at a level incentivising take-up, as well as consultation on extending the pay gap reporting duty to disability and ethnicity.

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Filed under Jurisdiction: UK, Remuneration (including bonus and incentive plans), Workplace culture, diversity and discrimination (including bullying and harassment)

UK: Data Protection Bill published – employers should prepare now for GDPR

The Government published the draft Data Protection Bill (the “Bill”) on 14 September. The Bill will be debated at its second reading in the House of Lords on 10 October 2017. The Bill will replace the Data Protection Act 1998 (the “1998 Act“) and will be supplemented by the EU General Data Protection Regulation (“GDPR”) which applies directly from 28 May 2018 until the UK leaves the EU; at that point, the Government intends that the GDPR will be incorporated into the UK’s domestic law under the European Union (Withdrawal) Bill. The Bill therefore does not need to replicate the GDPR itself, but instead implements various derogations permitted by the GDPR and also extends the GDPR standards to certain areas of data processing outside EU competence. The Bill also provides for the continuation of the Information Commissioner’s role.

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Filed under Data protection and privacy, Jurisdiction: UK

UK: Medical assessments – employers should review their arrangements to minimise risk of vicarious liability

A High Court has held in Various claimants v Barclays Bank an employer vicariously liable for the acts (in this case, alleged sexual assaults) of a doctor engaged by it as an independent contractor to carry out medical assessments on provisionally successful job applicants to ensure fitness for role. The Court ruled that the facts satisfied the test for vicarious liability, namely that the relationship with the perpetrator was one of employment or quasi-employment (involving sufficient control), and that the wrong was sufficiently closely connected with that relationship.

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Filed under Employment status (including agency workers, casual workers, use of contractors and 'dispatch' arrangements), Jurisdiction: UK

UK: Discrimination – burden of proof ruling highlights need for employers to present positive case

In Efobi v Royal Mail the EAT has ruled that it is not incumbent on the claimant in a discrimination claim to prove a prima facie case: it is for the tribunal at the end of the hearing to consider all the evidence from all sources in determining whether there are facts from which it can conclude that discrimination has occurred. If so, the tribunal must then consider if the employer has offered an explanation for its actions proving that it did not discriminate.

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Filed under Employment-related claims- procedure and form, Jurisdiction: UK, Workplace culture, diversity and discrimination (including bullying and harassment)

UK: Employer’s duty of trust and confidence – caution needed before suspending to investigate alleged misconduct

A recent High Court ruling serves as a reminder to employers not automatically to suspend an employee accused of misconduct while an investigation takes place. Employers should first seek the employee’s response to the allegations and consider whether suspension is actually necessary in order to carry out a fair investigation (or for other legitimate reasons) or whether there may be other options such as a temporary reassignment. It may also be relevant whether the contract of employment or handbook policies give an express right to suspend and set out when suspension may be appropriate.

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Filed under Jurisdiction: UK, Termination of employment

Australia: Casting a Wide Net – Proposed Labour Hire Licensing Scheme in Queensland

The Queensland Parliament is currently considering significant changes to the labour hire industry by way of the Labour Hire Licensing Bill 2017 (Qld) (Bill). The Bill was introduced and read for the first time on 25 May 2017 and was subsequently reported on by the Finance and Administration Committee (Finance Committee).

The Bill:

  • introduces a licensing scheme for labour hire providers (Providers); and
  • creates various offences relating to that scheme.

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Filed under Employment status (including agency workers, casual workers, use of contractors and 'dispatch' arrangements), Jurisdiction: Australia