the latest briefs.....

Check here for the very latest news on all employment issues…

Latest Brief - Week Ending 19 August 2016 

Gender pay gap reporting regulations delayed

The government has confirmed that the publication of the final version of the Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 has been delayed. Originally, it was expected that the Regulations would come into force on 1st October 2016, with the first "relevant date" on which businesses will need to take a snapshot of their gender pay gap on 30th April 2017.  It now seems more likely that the Regulations will come into force in April 2017.  If this happens, it is likely that the first "relevant date" would remain the same, so that the first gender pay gap reports would be due by the end of April 2018.  

Changes to taxation of termination payments

HM Revenue and Customs has published draft legislation changing the taxation of termination payments.  The main changes are:-

  • To make all payments in lieu of notice taxable, even if they are non-contractual;
  • To require payment of employer NICs on sums over £30,000;
  • The ensure that payments for injury to feelings are subject to tax.

The wording of the draft legislation is open for consultation until October, with the regulations currently anticipated to come into force in April 2018.

Protection of rights for EU workers

Many EU workers in the UK and their employers are understandably concerned about the impact that Brexit may have on their right to continue to work in the UK. The government has recently issued advice on this. 

When Article 50 is triggered, the UK will have a two year period to negotiate its exit from the EU, so employers can use this time to ensure that they have done everything that they can to protect their businesses.  

It is unclear what will happen in the longer term, but if the UK is no longer bound by the EU principles of freedom of movement, it is likely that EU nationals will need to make use of the points based system currently required for non-EU nationals.  This would mean that skilled EU workers would need to be sponsored by a UK business under Tier 2.  The position is not clear in relation to unskilled or lower skilled workers.  

While the position remains uncertain, there are a number of steps that employers may wish to consider taking to protect their workforce:-

  • Audit the workforce to work out the extent to which the business is reliant on EU workers;
  • Provide support to EU employees, perhaps by pointing them in the direction of useful websites, or paying external advisers to provide advice and assistance;
  • Draw up strategies for future workforce planning, and consider whether there are changes that could be made to the business model in the event of a shortage of workers.

Those employees who are eligible may wish to apply for a permanent residence card, or for British citizenship, to secure their position.

Latest Brief - Week Ending 12 August 2016 

Increase to injury to feelings awards

Injury to feelings awards in discrimination claims are determined by reference to three bands (lower, middle and higher), known as the Vento bands. Currently, discriminatory acts falling into the lower band will result in compensation of between £600 and £6,000, the middle band will be between £6,000 and £18,000, and the higher band will be between £18,000 and £30,000.  Previously, tribunals had not been prepared to increase the limits of the Vento bands in line with inflation unless this is expressly provided for by a higher court.

The EAT has now confirmed that employment tribunals are entitled to take into account the effect of inflation on the Vento bands without waiting for further guidance from the EAT or higher courts.  In the same case, the EAT upheld a tribunal's decision to award £14,000 injury to feelings to a young woman forced out of her job because of sexual harassment.  Although the EAT considered that the amount was on the high side, it refused to interfere as the award was not 'manifestly excessive,' and had correctly been placed in the middle Vento band.  

Power of Tribunals to reject claims

The EAT has held that the rule requiring Tribunals to reject a claim without a hearing where it is in a form which "cannot sensibly be responded to" is beyond the Tribunal's powers (ultra vires).  The EAT suggested that the correct procedure for dealing with claims that cannot sensibly be responded to is at the sift stage, where employment judges can identify weak cases which should not proceed.  Where weak cases are identified during the sift stage, the claimant should be given the opportunity to make written representations explaining why the claim should not be dismissed, and to have a hearing prior to any decision to dismiss.  The latest EAT decision makes clear that the claimant should always have the opportunity to provide reasons to explain their conduct, prior to any decision being made by the Tribunal to strike the claim out or reject it.

Rio 2016

With this year's 'Sensational Sunday' topping 'Super Saturday' in the 2012 Olympics, many employees, whether sports fans or not, are likely to have been caught up in the excitement of the Rio games.  Due to the time difference, the majority of the action has been taking place during the afternoons and evenings, with key events often taking place in the early hours of the morning UK time.  As a result, many employers are likely to have experienced a flurry of last minute holiday requests, or employees calling in sick or arriving late after cheering on Team GB late into the night.  

These issues should be dealt with in exactly the same way that they would be usually, taking care to ensure that all employees are treated consistently and fairly. That said, employers may wish to take a slightly more flexible approach during the Olympics, perhaps allowing last minute leave requests which would usually require more notice, or allowing employees to arrive at work slightly later than usual on the basis that they make up the time in the evening before they leave. 

Ultimately, allowing employees to enjoy the Olympics does not need to have a negative impact on the workplace, and employers may find that adopting a slightly more relaxed approach during these two weeks helps them to get the best out of staff during this period.

Latest Brief - Week Ending 5 August 2016

Self employed workers at Deliveroo

Deliveroo has been in the news this week as the latest big company in the spotlight for its use of self-employed workers.  The company, which uses cyclists to deliver food to customers from restaurants, requires its self-employed contractors to sign a contract containing a clause preventing staff from going to court to contest their employment status.  If they do go to court, and argue that they are in fact employees, they will be responsible for paying the company's costs in defending the claim.  Such clauses are highly likely to be unenforceable, and are probably designed to put members of staff off bringing claims, particularly in light of similar recent claims from Uber drivers.  Sports Direct has also been in the news a lot recently, criticised for its alleged abuse of self-employed and agency workers.  It will be interesting to see whether pressure from the public and the press will lead to a change in Deliveroo's policy, or a potential challenge to the wording of the contract.  

English language requirement for public sector workers

The Immigration Act 2016 requires public authorities to ensure that public sector workers in customer facing roles speak fluent English.  A code of practice and impact assessment on the English language requirement have recently been published by the Cabinet Office and the Home Office to assist public authorities in determining the necessary standard of English amongst their employees.  The Code also explains ways in which public authorities can set a standard of spoken English for customer facing roles, and provides options for remedial action where staff do not meet the necessary standard.  Public authorities must have regard to the code when fulfilling the so-called 'fluency duty.'