The EAT in Ibrahim v HCA International has confirmed that an employee’s disclosure complaining of false rumours circulating about him was an allegation of failure to comply with a legal obligation (ie, defamation). It was therefore capable of amounting to a qualifying disclosure for the purposes of whistleblowing protection, notwithstanding the employee’s failure to use precise legal terminology, given the substance of his complaint was clear. However, on the facts the claim failed as the employee did not have a subjective belief that his disclosure was in the public interest.
UK: proposals to extend redundancy protection for employees who are pregnant or returning from maternity leave
The Government has published a consultation until 5 April 2019 on proposals to extend the current period of protection for women on maternity leave during which they are given priority over any suitable alternative vacancies should their role be made redundant. (An employer’s failure to offer any such available vacancies renders the consequent redundancy dismissal automatically unfair.)
The main proposal is to extend this right of priority over vacancies to apply from the point at which the employee notifies her employer of her pregnancy in writing, through to six months after a new mother returns to work. The consultation seeks views on how this should work where an employee takes some other form of leave immediately after her maternity leave (such as annual leave or a career break) and also whether the protection should be extended to those returning from adoption leave, shared parental leave and longer periods of parental leave.
The rules regarding payslips are due to change on 6 April 2019. Itemised payslips will have to be given to ‘workers’ as well as employees, and include hours details for the hourly paid. BEIS has published guidance here.
As the second deadline for reports approaches, the Equalities and Human Rights Commission has published a report urging employers to accompany their figures with narrative reports and action plans with concrete, time-bound target-driven activities to reduce the gap. The report highlights ideas for action and recommends employers to refer to the Government Equalities Office evidence-based guide on practical steps to close the gender pay gap (discussed in our blog post here).
The Government has also published its formal response to the House of Commons BEIS Committee’s report (see our blog post here) on gender pay gap reporting, clearly signalling that it is not planning any immediate changes to the regime and will await the statutory review scheduled for 5 years post-implementation.
- The Supreme Court has upheld a Court of Appeal decision that treatment of a disabled employee which is advantageous (permitting ill health early retirement) cannot be viewed as unlawful ‘unfavourable treatment’ due to disability simply because it could have been more advantageous. In this case the pension was based on the part-time hours the employee had changed to pre-retirement, as a reasonable adjustment for his disability, rather than full-time hours. However, had he been able to work full-time, he would not have been entitled to retire early at all. (Williams v The Trustees of Swansea University Pension & Assurance Scheme)
The Court of Appeal has ruled on the territorial scope of the duty to inform and consult on collective redundancies at an establishment. The duty applies where the relevant establishment has a sufficiently close connection with Great Britain, and not simply where the employees have sufficient connection. In this case the Court considered that the ships of a fleet operating mostly outside UK territorial waters were each a single establishment (such that the duty would apply only if 20 redundancies were proposed on one ship) and the fact that some administrative functions were performed in Surrey was insufficient connection for the duty to apply. (Seahorse Maritime Limited v Nautilus International)
- The Court of Appeal has upheld the EAT’s ruling in Uber BV v Aslam that Uber drivers were workers on the basis that the written documentation seeking to establish them as independent contractors did not reflect reality; the drivers were held to be working while they had the Uber app switched on and were within their territory and ready and willing to accept trips. However, Underhill LJ gave a strong dissenting judgment that, in his view, the documentation was consistent with how the parties worked in practice and the fact that it was one-sided due to the unequal bargaining strength of the parties could not justify setting it aside. He also considered that the drivers should only be treated as workers (if at all) from the moment they accept a particular trip. Uber has appealed to the Supreme Court.
The last few weeks have seen a flurry of publications providing a slightly clearer picture of the employment and immigration consequences of a Brexit deal or no-deal. In addition to the final text of the draft Withdrawal Agreement setting out the arrangements for the UK’s withdrawal from the EU on 29 March 2019 and the draft Political Declaration on the future relationship between the EU and the UK, the European Commission has published a Q&A on citizens’ rights under the Withdrawal Agreement and a proposed Regulation on visa-free travel while the UK Government has published a policy paper on citizens’ rights in a no-deal scenario and its much-delayed Immigration White Paper. So where does all this leave employers? Continue reading
On Monday 17 December 2018, the Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) (Amending Regulation) was registered and took effect from 18 December 2018. The Amending Regulation amends the Fair Work Regulations 2009 (Cth). The Amending Regulation is intended to apply where an employee has mistakenly been classified as a casual employee and is claiming NES entitlements, even though they have received a casual loading in lieu of those entitlements. The purpose is to ensure double-dipping does not occur. Continue reading