Category: Employment Law Updates

27
Feb2018

Video: Gravitate HR GDPR Toolkit for Small Businesses

 

The EU General Data Protection Regulation (GDPR) comes into force on 25th May 2018. With our GDPR toolkit, Gravitate HR can help your organisation prepare for the new regulations by providing an E-learning module for all staff, a tailored GDPR Policy, and the relevant template correspondence.

You can contact one of our advisors in Edinburgh or Glasgow for further details.

24
Oct2017

Modern Slavery – October 2017 Update

Modern Slavery Act 2015

The UK government estimates that there are tens of thousands people in slavery in the UK and only 1% of victims see their exploiter brought to justice.  In 2015, the UK government introduced the Modern Slavery Act. This legislation focused on the prevention and prosecution of modern slavery and enhancing protection and support for victims. On the 4th October 2017, the UK government updated its guidance to businesses on preventing modern slavery. This blog looks at the key updates and how this affects companies.

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17
Oct2017

New bereavement leave allowance for parents

The Government has published proposed laws to grant employed parents two weeks’ paid leave if they lose a child under the age of 18. The Parental Bereavement (Pay and Leave) Bill will give a right to parental bereavement leave to all eligible employees. Employees with a minimum of 26 weeks’ continuous service will also be entitled to statutory bereavement pay.

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18
Aug2017

The types of tribunal claims that are expected to soar in the post-fee era

Following the major decision of the Supreme Court last month to declare employment tribunal fees unlawful, People Management asked some employment lawyers the types of cases the courts are likely to hear more of in the future.

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31
Jul2017

The ‘Scrapping’ of Employment Tribunal Fees – an HR perspective

One of the big business stories last week was the ruling by the Supreme Court that the controversial fees for bringing employment tribunal claims are unlawful, a ruling that was hailed as a “massive win for workers” by TUC general secretary Frances O’Grady.

In 2013, the Government introduced the fees with the goal of eliminating frivolous tribunal claims from an individual or group who knew that they would have very little chance of being successful. According to figures provided by the Ministry of Justice, the number of employment tribunal cases in 2012 generally averaged at slightly above 5,000 total cases per month. However, after the ruling in 2013, the total number of cases averaged between 1,500 and 2,000 per month, the highest number being 2,210 in March 2014 – well below the average number in 2012.

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13
Mar2017

Can Gender Pay Reporting Finally Close the Pay Gap?

Wednesday the 8th March marked International Women’s Day, which helps to promote the formation of an equal and gender inclusive working world. I was reminded of my ‘Equal Pay Day: How far have we come?’ blog in November 2016 about the historical fight for pay equality between men and women. Of course, the introduction of Gender Pay Gap Reporting in 2017 will be quite a significant legislative change and these regulations will come into force on the 31st of March 2017 for public sector employers, and the 7th of April 2017 for private and voluntary sector employers. Read more

Is an “off the record” conversation, really “off the record”?

Introduced in 2013, Section 111A of the Employment Rights Act 1996 allows employers to have “off the record” conversations with employees that cannot be referred to in any later dismissal proceedings.

Prior to this act being introduced, you would have had to have relied on the “without prejudice” ruling. Section 111 A is similar to the effect of the “without prejudice” rule except there is no requirement to have had a previous or ongoing dispute with the employee to engage in an “off the record” conversation.

As an employer, you may want to have this type of open conversation when you are considering terminating an employee due to conduct and poor performance issues, if the employment relationship just simply isn’t working, you want to avoid a lengthy and complex dismissal process or where you are concerned that there isn’t enough evidence to support a “fair” dismissal.

When having an “off the record” conversation, employers are protected in that the conversation will not be valid in any future unfair dismissal proceedings provided that it is not related to any improper behaviour, it relates to the end of an employee’s employment and a settlement offer has been made with the employee or there have been negotiations about the employment being terminated.

A recent interesting case, Faithorn Farrell Timms LLP v Bailey heard at a EAT, involved the claimant bringing a construction dismissal and indirect sex discrimination against her employer. This case highlights how the S11A privilege is more useful than the “without prejudice” rule when dealing with pre-termination conversations. The EAT held that:

  • Section 111A protects not just the detail of the offer but also the fact that the pre-termination discussions have taken place and this extends to any discussions held with a view to terminating the employment on agreed terms.
  • Internal conversations between different managers and HR are also protected as it is deemed only right that these conversations would had taken place as part of the general discussions.
  • The tribunal should have separated out the claims so that information not protected by section 111A could have been heard in relation to the sex discrimination claims.
  • If no improper behaviour is established then section 111A privilege cannot be waived, unlike without prejudice privilege which can be waived by the parties.

So, what does the findings of this case mean for employers? It shows just how complex the ”without prejudice” role is particularly where an employee is raising several claims, not just unfair dismissal.
As it is now clear that section 111A privilege cannot be waived, employers can have open correspondence with the employee during any period of negotiations and be covered by section 111A if they want this information ‘on record’. The open correspondence allows the employer to demonstrate ongoing communication and explain any apparent delay in any future litigation.

If you have any questions about how to have an “off the record” conversation or need any support in engaging in this type of negotiations, please give me a call on 0131 243 1377.

Brexit

Brexit – employer implications on the decision to leave the EU

The results of the EU referendum last month caused huge shockwaves across the country as a majority of the UK decided to leave the EU. The outcome led to upheaval in the leadership of the 2 main Westminster parties, the value of the pound and shares in the FTSE skydiving, concern and apprehension amongst businesses, oh and the small constitutional matter of another threat to the very existence of the United Kingdom with a majority in 2 parts of the UK voting to remain in the EU.

The Exit process

There is still a lot of uncertainty surrounding the exit process with the much-publicised article 50 still to be triggered by the new government which will formally start the procedure to leave the EU. It is worth noting that in the short term, it is still “business as usual”. Despite the chaotic political and economic fallout from the vote, legally nothing has changed. Therefore, it is wise, as some employers have already, to communicate to and reassure staff that there will be no immediate changes. This perhaps is most pressing for companies which employ staff from other parts of the EU.

Immigration

During the referendum campaign, there was a lot of talk from the Vote Leave camp of the introduction of a new immigration system to end the automatic right of all EU citizens to live and work in the UK. The Australian-style points-based system was mooted as a system that could be followed and there is a possibility that we may see an introduction of such a setup in the UK at some point. There remains doubt about the status of EU citizens currently living in the UK with the government refusing to guarantee their current status. Although it is difficult to envisage that we will see EU citizens already settled in the country being evicted from the UK, it is possible that EU citizens that enter the UK between now and the formal separation will not have a permanent right to live and work in the UK. Negotiations on this will take time so there are again unlikely to be any immediate changes in this area.

Employment Law

A major portion of UK employment law derives from the EU with many laws being enacted through separate acts of parliament and statutory instruments. This means that leaving the EU is unlikely to have a major impact on employment in the UK unless the government amends each individual piece of legislation. It is also worth highlighting that EU rights are essentially a minimum standard and there are some UK rights that go beyond what is required. For example, with paid holiday, the EU requirement is 4 weeks per annum while in the UK the statutory minimum is 5.6 weeks’ paid holiday per year. There is also plenty of UK employment law that is not in any way connected to the EU (e.g. unfair dismissal, minimum wage, shared parental leave and the right to request flexible working).

In conclusion, it is still early days in post-referendum UK with the dust still to settle. It remains to be seen what shape Brexit will take in the coming years as the UK enters into negotiations with the EU over the terms of the split. However, what we can say, is that we are certainly in significant times of change.

Daniel Barnett has a good article on the HR implications of Brexit.

Image courtesy of Intellectual Property Watch

Zero-Hour Contracts Update

Zero Hour Contracts Update

In May 2015, there were changes to legislation regarding exclusivity clauses in Zero Hours contracts. Specifically, that where employees were engaged on a contract of employment which did not guarantee a weekly income it was deemed unlawful to include a clause in the contract of employment which stated the employee could not seek employment elsewhere for the aim of securing an income.

However, until now it this has been unenforceable. From 11th January 2016, it is a day one right employees can raise a claim for unfair dismissal where they: are dismissed because they are employed elsewhere; seek employment elsewhere or; are subject to detrimental treatment as a result of their employment elsewhere, as opposed to the usual 2 years’ service required to raise a claim. A key piece of evidence an employment tribunal will look for will be if there is such an exclusivity clause in the claimant’s contracts. Furthermore, compensation that could be awarded, will be at the discretion of the tribunal, determined by what is deemed to be just and equitable in the circumstances.

Employers should therefore be mindful that having an exclusivity clause in a zero hours employment contract is not binding and the employee can disregard it. Employers cannot avoid this ban by including a clause in the employment contract stating the employee must seek permission before engaging in employment. Therefore, should employers have employees on a zero hour’s contract which contains an exclusivity clause currently, it might an idea to issue those employees a new contract of employment without this clause.

If you would like further guidance on this please do not hesitate to contact myself or another member of the team.

National Minimum Wage Increase

National Minimum Wage Increase

Please note that as of 1st October 2015:

The adult rate (21 and over) will increase by 20 pence to £6.70 per hour.

The rate for 18 to 20 year olds will increase by 17 pence to £5.30 per hour.

The rate for 16 to 17 year olds will increase by 8 pence to £3.87 per hour.

The apprentice rate will increase by 57 pence to £3.30 per hour (for apprentices in their first year. (This rate is for apprentices aged 16 to 18 and those aged 19 or over who are in their first year. All other apprentices are entitled to the National Minimum Wage for their age.)

National Living Wage (from April 2016)

Ordinarily, we would not expect the minimum wage to go up again until October 2016, however earlier this year the Government confirmed that a new tier of minimum wage will be introduced. The provisions are as follows:

From April 2016, the national living wage will be £7.20 an hour for workers aged 25 and older. The minimum wage will still apply for workers aged 24 and under.

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