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Education briefing - Changing Direction

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  • Education - Briefings

29-03-2019

 Quarterly UK employment update

January to March year – a backward glance

Development Impact on employers
With Brexit looming, to ease the transition for workers in the event of no deal, it has been confirmed that EEA workers who arrive after Brexit are able to stay in the UK for up to three months from arrival. They may also apply for permission to stay for up to three years under the European Temporary Leave to Remain scheme.s who arrive after Brexit are able to stay in the UK for up to three months from arrival. They may also apply for permission to stay for up to three years under the European Temporary Leave to Remain scheme.

Institutions are reminded to be aware of their key EEA workers and their rights to work in the UK after Brexit so that they can offer support and/or contingency arrangements. The Gov't has helpfully clarified that employers will not be asked to distinguish between EEA citizens in terms of checking their right to work based on their date of arrival, until January 2021

See our no deal briefing for education institutions.

The practice of requiring disclosure of all criminal convictions and of warnings, reprimands or cautions to young offenders on enhanced criminal records checks has been ruled contrary to human rights by the SC: R v SOS for the Home Department

The Gov't must now review urgently the filtering process for disclosure of criminal records. In light of the decision, employers who have received details of childhood cautions or excessive detail related to multiple convictions and who base employment decisions solely on this information, risk challenge.

The CA has clarified that a 'compensatory rest break' need not necessarily entail an uninterrupted break of 20 minutes but must be assessed according to its value to the worker's well-being: Crawford v Network Rail Infrastructure Limited.

Wherever possible, employers need to enforce proper and timely rest breaks in accordance with WTR obligations. However, where compensatory rest becomes relevant, some leeway exists, so that a series of shorter breaks may be permissible, even if a 20 minute uninterrupted compensatory break could have been accommodated.

 April to June 2019 – short  range forecast

What to Expect Impact on employers
The right to receive a payslip is being extended to all workers (at present it only applies to employees) from 6 April 2019. In addition, employers will be required to state the hours being paid for on payslips where the amount of wages or salary varies by reference to time worked. Institutions and their payroll suppliers need to ensure that they are ready for the imminent implementation date. Payroll software and time-recording practices should be reviewed and updated
The national living wage will be increased to £8.21 in April 2019. Rates for younger workers and apprentices will also go up. The Low Pay Commission is consulting on raising the national living wage rate to around £8.67 in 2020. Meanwhile, the Gov’t is reviewing some of the detail of the minimum wage rules to address concerns that they are unnecessarily restrictive and are penalising employers unfairly in some respects. Institutions should audit pay systems and workplace practices to ensure compliance with the regulations. Many employers may not appreciate how their established payroll practices make them vulnerable to inadvertent, technical breaches.
The Gov’t is consulting on imposing new conditions on the use of confidentiality (non-disclosure) clauses and rendering any non-compliant clause included in a settlement agreement void (Read our briefing). A new statutory Code of Practice on sexual harassment will also be published. The consultation closes on 29 April 2019. If the Gov’t pursues its recommendations, employers will need to review contracts and settlement agreements for compliance and to ensure that their use of confidentiality clauses is managed on a case by case basis and is not automatic.

Regulations have been passed which increase the ET maximum penalty for an “aggravated” breach of a worker’s rights from £5,000 to £20,00 from 6 April 2019.

See Government Guidance

“Aggravating features” are not legally defined but will include deliberate or malicious acts by employers, which ETs may factor in to their assessment of compensation. The size and resources of the employer will be taken into account, as will any mitigating circumstances.
The Gov’t has stepped up its pressure on organisations to comply with modern slavery reporting duties and stated its intention to name and shame non-compliant employers from April 2019 and to strengthen existing legislation. It is also consulting on how to incorporate modern slavery (and diversity) metrics into its procurement decisions. We recommend that institutions required to report under the Modern Slavery Act should not delay publishing their latest statement for the 2018 financial year.
The CA is due to consider whether the Agency Workers Regulations are breached where a difference in entitlement to basic terms is compensated for by the payment of an enhanced hourly rate; and whether agency workers must be provided with precisely the same number of working hours as the hirer's employees: Kocur v Angard Staffing Solutions Ltd. The EAT held that each term must be looked at individually rather than taking all the employment conditions as a package. Depending on the CA decision, this may have implications for temporary staffing costs and management.
A CA judgment is expected to decide in what circumstances it is unlawful direct disability discrimination to treat someone less favourably because they are believed to have an impairment with the features that would qualify them as a disabled person under the Equality Act 2010, even if they are not in fact disabled: Chief Constable of Norfolk v Coffey. This will be the first time the CA has directly addressed the issue of perceived disability discrimination
Three EU Directives, on whistleblowing, working conditions and work-life balance, are expected to be adopted before end May 2019. Depending on the content and timing of the UK’s Brexit agreement, some or all may need to be implemented in the UK in due course. While UK legislation already provides for some of the workplace rights contained in the Directives, some change would be necessary – if implementation is a requirement going forwards.

  July to December 2019 - long range forecast

What to expect Impact  on Institutions
The CA will rule on whether it can be sex discrimination for an employer to pay less to men who take shared parental leave than it pays to women on maternity leave: Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicester. A ruling in favour of the claimants will require many employers to review their shared parental pay practices and some may be tempted to reconsider generous maternity pay schemes.
The CA is to consider whether payments made for voluntary overtime that is regularly worked must be included when calculating holiday pay for the first four weeks of holiday: Flowers v East of England Ambulance Trust. Unions are pressing employers to include voluntary overtime in holiday pay on the strength of earlier rulings. At present the law on this issue is unsettled, however, and will remain so until this case is decided.
The ECtHR’s grand chamber is to review a controversial ruling that secret monitoring of staff through covert video surveillance violated their human rights, even though the aim was to investigate workplace theft: López Ribalda v Spain. If the original decision is upheld it will make justifying covert-surveillance at work extremely difficult for employers.
The SC is due to hear Uber’s appeal against the decision that its drivers were workers, entitled to holiday pay and the minimum wage. Meanwhile, the CA is deciding whether Addison Lee should be allowed to appeal findings of worker status in cases brought by drivers and cycle couriers. Success for the claimants could encourage others to argue their status has been misclassified. Employers who engage individuals on a non-employed basis should consider carrying out a review and risk assessment.
Late in the year the Gov’t may respond to recent consultations, setting out how it plans to take forward proposals for ethnicity pay reporting and extended redundancy protection for pregnant women, maternity returners and those taking shared parental leave. Reporting ethnicity pay will require significant effort and buy-in from employers. Those who already go to some lengths to collate ethnicity pay data may need to revise their approach. For the remainder, a raft of policies and procedures will need to precede pay reporting, from what ethnicity data is collected, how, and the steps taken to reassure and encourage staff that sharing their details is a good thing (Read our briefing). If the redundancy proposal is adopted, employers will need to give a wider range of employees priority over alternative vacancies.
Employers will need to start preparing for some of the Gov’t’s Good Work Plan proposals taking effect from April 2020, including: repeal of the Swedish derogation for agency workers; a day one right for all workers to receive more detailed particulars of their terms; extension of the reference period for statutory holiday pay to 52 weeks; and lowering of the threshold required for a request to set up Information and Consultation arrangements. Further consultations are likely to follow later this year, including on employment status definitions; one-sided flexibility; and a proposed right to request more predictable and stable hours. Institutions should review and update their standard contracts and statements of particulars and get ready to adjust the way they calculate holiday pay (see our briefing).

The Govt is expected to publish regulations setting out the detail of the new right to two weeks’ paid parental bereavement leave, which is due to take effect in April 2020.

 

Institutions should review internal policies for consistency with the new regime once the regulations are published.
A consultation is expected on proposals for the reform of the SSP regime, including to accommodate phased returns to work. Other ideas under consideration include extending the right to SSP to workers and giving a state enforcement body greater power to police underpayments. It seems unlikely that any resulting legal changes will take effect before 2021. For now, therefore, no further action by employers is needed.

 

 

Key
CA Court of Appeal
EEA European Economic Area (EU countries and also Iceland, Liechtenstein and Norway)
EAT Employment Appeal Tribunal
ET Employment Trivunal
Gov't The Government
SC Supreme Court
ssp Statutory Sick Pay
WTR UK Working Time Regulations

 

 

 

 

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