Employment Law Update Stuart Chamberlain PPMA 6 November 2015

Today’s programme Recent legislation What’s in store? – 2016 and beyond Selected case law

Review of recent legislation

1. Family Friendly policies Shared Parental Leave: 5 April 2015 Take up rate? Complex rules Potential problems? To be extended to working grandparents

1. Family Friendly policies cont. Parental Leave extended: 18 weeks’ unpaid leave for children 5-18 Adoption leave & pay Removal of service requirement Pay mirrors SMP Appointments “Fostering for adoption” scheme

2. Zero Hours contracts Exclusivity clauses(May 2015) – only legislative provision so far Definition of zero hours contract ( Coalition)Government review of employment status – clarification?

3. Changes on 1 October 2015 ET’s powers of general recommendations in successful discrimination cases limited to references to claimant, not organisation as a whole Increases in NMW rates Right of Sikhs to wear turbans instead of safety helmets extended Ban on smoking in cars if carrying children under 18

What’s in store? – 2016 and beyond

For the public sector: Trade Union Bill [EU Referendum Bill]? No later than December 2017 (May 2016?) Public sector exit payments

and: ET procedures re. postponements National Living Wage (April 2016): impact? Gender Pay Gap Reporting(March 2016) Caste discrimination Childcare payments Immigration Bill- public authorities to ensure that workers in customer- facing roles speak fluent English – to be supported and enforced by Codes of Practice

Trade Union Bill Proposes changes to the TULR( C)A 1992 Three consultations: 1. Ballot thresholds in important public services 2. Tackling intimidation of non-striking workers 3. Hiring agency workers during strike action These consultations closed 9 September 2015

Trade Union Bill: 1. Higher threshold for ballots Valid ballot mandate for strike action – 50 % turnout and retain simple majority for action Higher test in “important public services” (6 sectors: fire; health; education; transport; border security; and, nuclear decommissioning): 40% of all eligible voters must vote in favour of industrial action. This is in addition to 50% participation threshold

Ballots cont. Minimum of two weeks’ notice ( 14 days) of strike action Voting paper to identify the dispute & specify the type and duration of proposed industrial action Time limit of 4 months for industrial action following the ballot

2. Preventing intimidating pickets & protests “Leverage” campaigns – e.g. Incos refinery in Grangemouth – the Carr report in 2014 Pickets to be supervised by named official Failure to comply means that trade union and members will not be protected from legal proceedings Potentially enforceable by injunction

3. Trade Union Bill: other proposals Trade unions to provide in annual return on amount of industrial action taken in each dispute Opting – “in” to political fund Extension in the role of the Certification Officer Greater scrutiny of trade unions’ internal governance Repeal of the ban on the use of agency workers for those on strike

4. Trade Union Bill:“Facility time” in the public sector Public employers to publish information about the time taken by trade union representatives for trade union duties and activities ( known as “facility time”. Guidance from Explanatory notes to the Bill

5. Trade Union Bill: Timescale? Next Spring (2016) – at the earliest Ban on use of agency workers could be repealed earlier

Public Sector Exit payments – Enterprise Bill { Note also under SBEE Act : The Repayment of Public Sector Exit Payments Regs (1 April 2016)] Cap of £ 95,000 will apply to all public sector workers All forms of exit ( including voluntary and non- voluntary redundancy) subject to cap Will apply to total, before tax, of all exit payments – untaken leave and compensation for injury/ill-health excluded Subject to future review Further detail to come in regulations.

Selection of case law

1. Legal challenge to ET fees R (Unison) v Lord Chancellor CA dismissed the challenge based on ‘access to justice’ Appeal to the Supreme Court? In the meantime – two reviews ( Government and H of Commons Committee) And the Scottish dimension?

2. Social media The British Waterways Board v Smith Confirm that no special rules in such cases – usual unfair dismissal rules apply Dismissal must be within the ‘band of reasonable responses’ – not a high threshold for the employer All cases emphasize the need for the employer to have an effective social media policy

3. HR’s role in disciplinary proceedings Ramphal v Department of Transport A reminder of the limits of HR’s role Inappropriate to influence decision as to issues of culpability Disciplining officer can seek guidance and advice from HR

4. Working time 1. Holiday pay & ‘normal’ pay —Williams v BA [2003] – all sums that were taxable —Lock v British Gas - commission —Bear Scotland v Fulton – non-guaranteed overtime Link between components of total remuneration and performance of tasks under contract of employment Tempered by Deduction from Wages Regulations 2014: backdated claims for unlawful deduction of wages limited to 2 years.

4. Working time 2. Time spent ‘on call ’ ECJ decisions: SIMAP [2000] and Jaeger [2003] MacCartney v Oversley House Management [2006] Truslove v Scottish Ambulance Service [2014]: a requirement to be within 3 miles of the base station with a target of a response within 3 minutes rendered the on-call time working time

4. Working time 3. Time spent travelling to & from work Federacion de Sericios Privados del Sindicato Comisiones Oberas v Tyco Integrated Services [2015]: Time spent travelling between first and last assignments of the day represents working time. Impact? 4. The NMW & relationship with WTR Whittlestone v BJP Home Input Ltd [2014] – work for the purposes of the NMW not to be determined by European law ( WTD) or common law.

Some conclusions/thoughts on working time cases Will continue to be a big employment law issue in 2016? Even more claims? Contractual claims? Impact of new National Living Wage?