1. Employment Law and Case Review CIPD Coventry and Warwickshire Branch
August 2017
Derek Eccleston and Kate Russell

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3. .... the biggest single victory in the history of employment law?
Tribunal fees
Unison challenge .....
.... the biggest single victory in the history of employment law?
New point – third bullet

4. Tribunal fees
Every fee levied since 2013 has been collected illegally and will have to be refunded.
What about costs awarded to the other party?
Will potential claimants who have been denied access to justice be able to sue the government or be allowed to submit late applications to Tribunals?
Will the Government seek to reintroduce fees through legislation – unlikely given their small majority!
New point – third bullet

5. Tribunal statistics Year Number of claims 2013/14 105,803 2014/15
61,308
2015/16
83,031
2016/17 Q1 Q2
15, ,545
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6. Living/Minimum Wage rates - harmonisation in April 2017
The rates are reviewed annually by the Low Pay Commission
The next rise will be April 2018
The Living Wage is a separate, voluntary rate set by the Living Wage Foundation: currently £8.45 (£9.75 in London)
National Living Wage (age 25 and over)
£7.50
Adult Rate (21-24)
£7.05
Lower rate (18-20)
£5.60
Youth rate (16-17)
£4.05
Apprentice minimum wage
£3.50
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7. Payment and compensation limits
Limit on a week’s pay
£479
£489
Maximum basic award
£14,370
£14,670
Maximum compensatory award
£78,962
£80,541
Daily rate of guaranteed pay
£26
£27
Minimum award for certain types of unfair dismissal
£5,853
£5,970

8. Gender Pay Reporting
The Department for Education has become the first Government department to publish its gender pay gap and bonus pay gap.
The department has reported a mean pay gap – the difference between average salaries for men and women - of 5.3% and a median pay gap of 5.9%.
This is compared to the UK’s national gender pay gap of 18.1% which is the lowest since records began in 1997.
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9. NMW offenders
The Department for Business, Energy and Industrial Strategy (BEIS) has released its largest ever list of minimum and living wage offenders (350 plus)
15,520 workers were underpaid by a total of £995,233
HMRC issued penalties worth approximately £800,000
Employers in the hairdressing, hospitality and retail sectors were the most prolific offenders
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10. Family Friendly Update10

11. Family Friendly Issues
Shared Parental Leave experience??
(7000 men took SPL in 2016 say HMRC) 11

12. Family friendly issues recent cases
Employers who pay mothers different rates of shared parental pay to fathers run the risk of sex discrimination claims…
Snell v Network Rail ET 2016
Father awarded almost £30,000 in a sex discrimination case after his employer refused to pay him the same as his wife while on shared parental leave.
His application indicated that his wife would take 27 weeks’ leave and he would take 12 weeks after that.
Mr Snell raised a grievance with his employer, which was unsuccessful, so he claimed sex discrimination.

13. Family friendly issues recent cases
Shared parental pay – contrasting ET decisions Ali v Capita Customer Management ET 2017 Hextall v Chief Constable of Leicestershire Police ET 2016

14. Family friendly issues – recent cases
Seville v Flybe ET 2016
Flexible working at airline rejected, which amounted to indirect sex discrimination
XC Trains v CD and ASLEF EAT 2016
EAT decision that the Tribunal failed to balance the legitimate aims of the Employer against the discriminatory effects of the rotating shift pattern

15. Employment status – the latest!
Aslam and Ors v Uber BV London ET 2016
Uber taxi drivers are not employees
But are workers, not self employed as Uber claimed
Dewhurst v City Sprint ET 2016
Boxer v Excel Group Services ET 2017
Also Note Pimlico Plumbers v Smith. Court of Appeal 2017

16. Dudley MBC v Willetts and ors. EAT 2017
Holiday pay
Fulton and ORS v Bear Scotland EAT 2017
Series of deductions is broken by gap of 3 months or more
British Gas v Lock ECJ 2014
Holiday pay should take account of commission payments
Referred back to UK for decision on the calculations
BG refused permission to go to Supreme Court (2017)
Dudley MBC v Willetts and ors. EAT 2017
What about purely voluntary overtime?

17. Pay deduction for striking
Hartley and Ors v King Edward VI College [SC 2017] If an employee goes on strike, the employer is entitled to withhold wages or salary in respect of the days not worked. Should the deduction be 1/260 of pay (a five day week) or 1/365 if paid annually? (On £40k per annum, this would either be £153 per day or £109 per day) Put something into the contract of employment to clarify?

18. Further review of DBS checking?
Following recent case law, it is likely that further changes are required to the current checking systems. R (on the application of P and ors) v Secretary of State for the Home Department and ors and another case, Court of Appeal 2017

19. Data protection – taking client records…
Ex-employee fined for taking clients records with him on leaving his employer
ed the details of 957 clients to his personal address as he was leaving to start a new role at a rival company
Telford Magistrates Court - £300 fine plus costs
Confirms it is a criminal offence in breach of Data Protection laws. Case taken by the ICO
“Taking client records that contain personal information to a new job, without permission, is a criminal offence.”

20. GDPR Accountability Consent Transparency Data breach
Data subject access rights
Processing principles

21. What is Changing?
Accountability - means by which compliance will be monitored & enforced
Express responsibility to be compliant & evidence it
Data protection by design
Keep records of data processing activities
Compulsory notification of breaches
Greater employee rights
Third party data processors
Penalties
Broader reach of data protection

22. GPDR Rights What data is necessary for the purpose?
Access to personal data to be limited
Subject access requests
Rectification
Erasure
Processing restrictions
Right to object

23. Privacy Notices
The legal basis upon which personal data will be processed
How long personal data will be retained
If, and the extent to which, personal data will be transferred overseas, and, in the event that personal data will be transferred outside of the EEA, the appropriate safeguards in place to protect that data
How an individual would make use of their data subject rights, including how to:
make a subject access request; and
request the deletion or rectification of personal data.

24. Consent
The GDPR specifically defines consent as: freely given, specific, informed and unambiguous indication of a data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement of the processing of personal data relating to him or her.
 Positive affirmative action needed
Be able to prove consent has freely been given
Inform of right to withdraw & be easy to do
Information must be easy to find & use plain language
Impact on employment contracts

25. Taylor Review “Good Work Report”
Remove the requirement for workers to have a contract to perform work personally
Extend the right to a written statement of terms to workers as well as employees
Require written statements to be given on day one of employment
Extend written statement of terms to include description of statutory rights
Give a stand alone right to compensation if employer has not given written statement

26. Taylor Review
Preserve continuity of employment where any gap in employment is less than one month, rather than one week  as currently required
increase the reference period for calculating holiday pay (where pay is variable) from 12 weeks to 52 weeks.
Allow holiday pay to be paid on a 'rolled up basis'
Give agency workers the right to request a direct contract with the end user after 12 months on an assignment
Give those on zero-hours contracts the right to request guaranteed hours after 12 months
Extend Consultation Regs (ICE) to include “workers”

27. Taylor Review
Consider allowing flexible working requests to cover temporary as well as permanent changes to contracts
Reform SSP to make it a proper employment right available to all workers – accrued in line with length of service - so 4 weeks SSP after 4 weeks employment.
Allow claimants to being a claim to ET (without fee) to determine employment status

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