n this update, we have focussed on the headline governance and regulatory issues that are facing RPs at this time. as we all deal with the Covid-19 crisis.
People have been pledging New Year resolutions for thousands of years, with Britons top three resolutions apparently repeatedly being: lose weight, exercise more, and save more money. As we enter 2018 however, what should the HR professional be planning for in the year ahead?
The General Data Protection Regulations (GDPR) will come into force on 25 May 2018 and bring changes to the rules governing data protection and the requirements placed on organisations which control or process personal data. National laws, including the Data Protection Act 1998, will no longer apply to matters falling within the GDPR’s scope. For the summary of the main changes for employers and highlights of the key steps HR teams should be taking please see our previous GDPR briefing.
Gender Pay Gap
The Gender Pay Gap Reporting Regulations are now in force and employers in the private, public and voluntary sector with a headcount of 250 or more must publish their first report before 4 April 2018 (30 March 2018 for the public sector) based on data collected at 5 April 2017. The Equality and Human Rights Commission are currently in consultation about increasing their enforcement powers for non-compliance, which could see gender pay reporting being under more scrutiny than previously considered. Most employers have started to gather information about their gender pay gap ready to publish by the deadline. If you have not yet done so, we urge you to make this a priority.
In the summer of 2017, the judgment in Dudley Metropolitan Borough Council v Willets confirmed that holiday pay calculations should include regular voluntary overtime – see our earlier briefing. Most employers have already changed their arrangement to ensure compliance, however, if this action point is outstanding, introducing the new holiday pay arrangements should be a priority. To assist our clients, we have developed a fixed-fee audit offer where we can review your arrangements and provide commercial advice on any required changes.
Further, organisations should note that in November 2017 the European Court of Justice (ECJ) gave an opinion in favour of a worker who did not receive holiday pay for 13 years on the basis that he was self-employed (King v Sash Window Workshop Ltd). The case will return to the Court of Appeal to make a final decision later this year, but it is anticipated that the court will agree with the ECJ’s verdict. If so, the case will be significant and could lead to potentially uncapped back-pay claims from workers prevented from taking paid leave and – more likely – claims from self-employed contractors who argue they are in fact workers. (The case of Shannon v Rampersad is also due to be heard in March 2018 by the Court of Appeal in relation to the same issue).
In the wider climate of recent challenges to employment status (such as in the Uber and Pimlico Plumbers cases that are due to be heard by the Court of Appeal in November 2018 and the Supreme Court in February 2018 respectively), employers facing uncertainty about workers’ employment status would be wise to clarify the matter sooner rather than later.
From April 2018, all payments in lieu of notice (PILONs) will be both taxable and subject to Class 1 NICs. The rules will require the employer to identify the amount of basic pay that the employee would have received if they had worked their notice period, even if the employee leaves the employment part way through their notice period, and employers will need to ensure that any payment in lieu is subject to tax and NIC deductions.
In the summer of 2017, the Supreme Court found that employment tribunal fees were unlawful and so they were abolished with immediate effect. We expect that with the fees abolition the number of claims will continue to increase and so employers need to prepare for how this additional work will be managed – both internally and with your external advisors.
It is well worth employers noting that a refund scheme is now available to reclaim previously paid tribunal fees, including employers being able to reclaim court fees that they have been ordered to pay to successful claimants and fees paid for judicial mediation. For further information, see our refund scheme briefing.
Cases to watch out for in 2018
Disability discrimination – Donelien v Liberata UK Ltd: This case was heard in November 2017 and concerns the issue of when an employer will be deemed to have constructive knowledge of a disability, sufficient to trigger the duty to make reasonable adjustments. It is one of a series of pending cases in which the Court of Appeal is considering what someone needs to know about an individual's disability before they can be liable for discrimination. The case of Gallop v Newport CC is also awaited by the Court of Appeal, who will be considering whether knowledge of disability and therefore liability for direct discrimination can be imputed to a dismissing officer where they have no knowledge of the disability.
National Minimum Wage – Royal Mencap Society v Tomlinson-Blake and other cases: In March 2018, the Court of Appeal will consider if sleep-in shifts count as work for national minimum wage purposes.
Changing terms and conditions/unlawful inducement – Kostal UK Ltd v Dunkley: Later this year the Court of Appeal is likely to consider, for the first time, whether an employer’s attempt to bypass collective bargaining with the trade union, by negotiating directly with individual employees regarding changes to their terms and conditions, was an unlawful inducement.
Shared parental leave and sex discrimination – Capita Customer Management Limited v Ali: The EAT’s decision is awaited on whether it was direct sex discrimination to deny a man shared parental leave pay at the same level as its enhanced maternity pay. A similar point is also due to be considered by the EAT later this month in the conflicting case of Hextall v Chief Constable of Leicestershire Police in which the ET held that it was not discriminatory to only pay statutory shared parental leave pay, where the employer offered enhanced maternity pay to women.
For more information on any of the above topics, or if you have any questions, please get in touch with your usual contact in our Employment Team. You can find out more about our employment work on our website.
The law surrounding organ donation has changed. The Organ Donation (Deemed Consent) Bill came into effect on 20 May 2020 and has implemented an opt-out system for organ donation.
Commercial and local authority landlords could benefit from urgently reviewing their legal options.
The Cabinet Office has published guidance asking for people to act responsibly, fairly and “in the national interest”.
To help our charity clients look to the future, we summarise key guidance and updates over the last week.
On 18 May 2020, the Ministry of Housing Communities and Local Government (MHCLG) wrote to all social housing residents in England (residents).
For anyone who is currently restrained from holding their General Meeting or have held such in breach of their governing documents, help is on the way!
Social landlords may be surprised to learn that “landlords should be able to carry out routine as well as essential repairs for most households”.
Many housing providers are now re-thinking about gathering information to complete their data return to the Regulator of Social Housing, with the initial exercise having been delayed by Covid-19.
With many premises being left unoccupied (or minimally occupied) during the lockdown, both Public Health England and the Health and Safety Executive have warned of the increased risks of Legionella.
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