UK: further detail on parental bereavement rights published

The Parental Bereavement (Leave and Pay) Bill received Royal Assent in September and is expected to come into force in 2020.  It provides for 2 weeks’ leave (paid if eligible) for parents who lose a child under the age of 18 or who suffer a stillbirth after 24 weeks of pregnancy.  The Government has now published its response to a public consultation on the detail of the new rights.

The right will be available to parents and also to all primary carers for children including adopters, foster parents, guardians and kinship carers (those who have assumed responsibility for the care of the child in the absence of parents).

Employees will be able to take a single two week block or two separate one-week blocks within 56 weeks from the child’s death (so as to permit time off over the first anniversary).  For leave taken within a specified short period after the child’s death, formal notice of taking leave will not be required; leave taken later will be subject to having given one week’s notice.

Evidence requirements will mirror existing requirements used for other family leave and pay rights where possible: written declarations of eligibility will be needed for pay and possibly, if the employer requests it, for leave (but this will not be a pre-condition for an employee taking time off in the initial period after the child’s death).  Death certificates and evidence of relationship will not be required.

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Filed under Jurisdiction: UK, Workplace flexibility and family-friendly rights

UK: workers may be entitled to carry over statutory holiday if they have not been encouraged to take it

The ECJ has ruled that workers cannot be deprived of paid statutory holiday entitlement on the termination of employment or at the end of a particular reference period or authorised carry-over period, unless the employer has ensured “specifically and transparently” that the worker is actually given the opportunity to take the leave. This means encouraging workers, formally if necessary, to take their leave entitlement and informing them, accurately and in good time, that they will lose it if they don’t take it. The burden of proof will be on the employer to show that “it has exercised all due diligence” in order to enable the worker actually to take his entitlement; loss of entitlement will only be lawful if the worker deliberately declines to take their leave knowing the consequences. Continue reading

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Filed under Jurisdiction: UK, Working hours (including holiday, sick leave, overtime, rest breaks)

UK: information gathering by in-house lawyer in order to obtain external advice may not be protected by legal advice privilege

The High Court has ruled in Glaxo Wellcome UK Ltd v Sandoz Ltd that an in-house lawyer’s communications with an employee of the business, who was accepted to be her in-house “client” for some purposes, were not protected by legal advice privilege where those communications were to seek and obtain information to provide to external solicitors in order to obtain their legal advice.  For further information see our litigation blog post here.

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

UK: new resources on criminal record checks, mental health and dyslexia

  • Unlock has published new guidance for employers on criminal record checks, to which the ICO has contributed. The guidance states that checks at the application stage are unlikely to be necessary for most jobs and therefore likely to be a breach of the GDPR. In relation to checks at the job offer stage, the guidance emphasises the need to think carefully whether these are necessary and whether there is a lawful ground and condition for processing. The guidance also discusses the use of personal social media and data in the public domain.
  • New resources on mental health in the workplace include guidance from the CBI, the CIPD and Mind, and new online gateway linking to many more resources at Mental Health at Work.
  • The charity Made in Dyslexia and EY have published a Value of Dyslexia report highlighting the huge value in dyslexic thinking and the unique set of skills that people with dyslexia can offer to an organisation.

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Filed under Data protection and privacy, Jurisdiction: UK, Workplace culture, diversity and discrimination (including bullying and harassment)

Australia: Workplace violence and red collar crime: Is it more threatening than you think?

Workplace violence is a significant and ongoing risk that employers should be alive to because it affects employee health, safety and wellbeing, which in turn impacts on productivity, absenteeism, sickness and replacement costs, to name a few.  In respect of the individual, it often causes physical or psychological injury and can even lead to death. In respect of the employer and industry more broadly, it can play out as an expensive scenario in terms of resources, money, time, good will, reputation and increased workers’ compensation and insurance premiums. Unfortunately however, the extent and prevalence of workplace violence in Australia is somewhat unknown. This is partly due to definitional ambiguities, the absence of national data being collected in this area and under-reporting. Continue reading

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Filed under Jurisdiction: Australia, Workplace culture, diversity and discrimination (including bullying and harassment), Workplace Health and Safety

UK: gender pay gap news

The Government Equalities Office has published a summary of the 2017/18 gender pay gap data submitted by employers as at May 2018, along with an Interim Gender Pay Gap Employer Insights Survey conducted at the end of 2017. The summary estimates that 48% of in-scope employers published an action plan in the first year of the duty (based on a sample of 400 employers) and 90% had produced a narrative to explain their figures. Only 17% of employers surveyed reported finding the GPG calculations difficult, yet according to analysis by Staffmetrix, employers are continuing to have problems: one in four of those who have submitted their 2018/19 data already have failed to fully comply with the requirements.

A survey by the Equality and Human Rights Commission has found that 61% of women look at employers’ gender pay gaps when applying for jobs.

Meanwhile the Office for National Statistics has reported some positive news. In the year to April 2018, the national gender pay gap fell from 9.1% to 8.6% for full-time workers, with the gap insignificant for those aged under 39, although it widens considerably for older age groups.

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

UK: Budget 2018 confirms IR35 reforms will extend to the private sector

The off-payroll working rules (commonly known as IR35) seek to ensure that individuals who are engaged through personal service companies (PSCs) by service users (End Users), but who perform roles equivalent to employees, are taxed through payroll in the same way as employees.

Historically, the obligations to operate payroll and to pay associated employer NIC costs have lain with PSCs rather than End Users; however, in 2017, reforms to IR35 were introduced that transferred these obligations to public sector End Users. It has now been announced that these reforms will be extended to the private sector. Continue reading

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

UK: Budget 2018 announces NIC change delay and new minimum wage rates

An important announcement in the Budget for employers to note was the decision to delay by a further year the introduction of employer Class 1A NICs on termination payments over £30,000, until April 2020.

There will also be changes to the availability of employment allowance in respect of NIC liability from April 2020 and to the apprenticeship levy from April 2019.

The new national minimum wage rates applicable from April 2019 have also been confirmed, with the rate for those aged 25 or over set at £8.21 an hour. (The Real Living Wage has also increased, to £9 an hour outside London and £10.55 an hour in London.)

Our tax team’s briefing on the Autumn Budget is available here.    Our blog post on the proposed changes to off-payroll working rules from April 2020 is here.

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

UK: managers could face personal liability for whistleblowing dismissal framed as detriment claim

Employers should ensure board members and senior managers are aware that, if they are instrumental in a decision to dismiss an employee for whistleblowing, they could be personally liable for post-dismissal losses. The Court of Appeal has upheld the EAT’s decision in Timis and Sage v Osipov that an employee can bring a whistleblowing detriment claim against a fellow worker in relation to their actions in dismissing him (for which the employer may be vicariously liable), in addition to an unfair dismissal claim against the employer. The law only prohibits bringing a claim based on dismissal as a detriment claim against the employer, not against colleagues instrumental in the decision to dismiss.

Given that detriment claims have a lower standard of causation and the possibility of injury to feelings awards (not available for unfair dismissal claims), it may well be advantageous for claimants to bring both types of claim. The colleagues and the employer can be jointly and severally liable for the losses flowing from the dismissal, and the award against the colleagues can also be subject to the statutory uplift for a failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (presumably a tribunal is more likely to award this where the colleagues were responsible for the employer’s compliance with the Code).

Employers should consider refreshing whistleblowing training for managers to highlight the potential for personal liability in relation to dismissal or other detrimental treatment in whistleblowing (and discrimination) cases. This could both avoid claims arising and also help an employer establish a reasonable steps defence should a vicarious liability claim be brought.

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Filed under Jurisdiction: UK, Whistleblowing

Australia: Employment class actions threaten to disrupt employers and unions alike

Over the past decade at least, many businesses have become alert to the burgeoning trend of class action law suits in Australia. Class actions, for example, have been commonly used to litigate shareholder actions and product liability claims. But until recently, they have been rarely used in the context of employment related disputes.

Read our latest article which provides an overview of recent developments in employment class actions by clicking here.

Continue reading

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Filed under Jurisdiction: Australia, Terms of employment contracts