DALLIMORE HelenTo help you keep quickly up to date with employment law, we summarise the key developments arising from cases, guidance, legislation and consultations for this month.

If you would like to discuss any of the points raised, please get in touch with Helen Dallimore, Senior Associate, or with your usual contact in the Foot Anstey employment team.

In the courts...recent case updates

An employee working without protest to a variation of a contract does not necessarily constitute acceptance

In the case of Abrahall v Nottingham City Council, the employer had removed the employee's contractual right to an annual increase in pay. The Court of Appeal held that the employees were not deemed to have accepted the variation despite having worked under the new system for two years without raising a grievance.

The Court of Appeal provided that the question on whether acceptance is inferred should be determined objectively, and acceptance of the change should only be inferred from conduct where no other reasonable explanation can be inferred.

The Court of Appeal further went on to say that where the variation of the contract is wholly disadvantageous to the employee, acceptance is less likely to be inferred.

EAT rules that failure to pay father enhanced shared parental pay was not sex discrimination

The case of Capita Customer Management Ltd v Ali and Another hit the headlines in June 2017 after the employment tribunal found that the Claimant's employer had directly discriminated against him on the grounds of sex, when they failed to pay him the enhanced rate of pay that women were entitled to while on maternity leave. You can read more about this decision in our previous news bulletin.

This decision has now been overturned by the EAT, on the basis that the tribunal had misunderstood the primary purpose of maternity leave and pay. The primary purpose is not to care for the child but to support the health and wellbeing of the mother. A father taking shared parental leave cannot, therefore, compare himself to a woman on maternity leave because he is not recovering from childbirth.

The EAT did acknowledge that there may be a circumstance where a father could compare himself with a mother on maternity leave. This could happen after 26 weeks of maternity leave had elapsed and the main purpose of leave shifts from bodily recovery to the care of the child. However, the facts of this case did not allow for such a comparison to be made. It also remains to be seen whether the EAT will follow the same line of reasoning in another case on the same issue which is expected to be handed down soon (Hextall v Chief Constable of Leicestershire Police ET/2601223/15).

Time spent travelling between home and a temporary work location could be 'working time'

In the case Thorbjorn Selstad Thue v The Norwegian Government, the question was raised as to whether the time a police officer spent travelling between his home and a temporary work location while he was on assignments could be considered 'working time' in accordance with the Working Time Directive (2003/88/EC).

The European Free Trade Association Court has held that time spent travelling outside normal working hours to and from a location other than the fixed place of work, to carry out duties as required by his employer does constitute 'working time'.

This judgement is not binding on other EU countries; however it could be persuasive as it considers the interpretation of EU legislation. It also follows the general trend of European cases which have considered some travel time for mobile workers to constitute working time, see here for our previous article.

Supreme Court rules on when notice of termination of employment takes effect

In the case of Newcastle Upon Tyne NHS Foundation Trust v Haywood the contract of employment was silent on when notice was deemed to have been given. This caused a dispute when Ms Haywood was informed that she was being made redundant by letter sent recorded delivery while she was away on holiday. It raised the question was notice given when the letter arrived on the 20th April or when the employee first had the opportunity to read the letter a week later?

The date of effective notice was of particular importance in this case because Ms Haywood was entitled to a considerably more generous pension if she was made redundant after her 50th birthday.

The Supreme Court's decision in this case was in line with previous case law; notice is deemed effective when the employee has read it or has had a reasonable opportunity to read it. Employers should therefore keep this in mind when giving notice, particularly if they are aware that the employee is going to be away.

Legislation and Guidance

ACAS publishes new guidance on agency workers

In response to an increase in the number of agency workers, ACAS has published new guidance to assist workers, employers and anyone using an employment agency. The guidance sets out;

  • Agency worker's entitlement to pay,
  • Guidance on how to establish the employment status of an agency worker, and
  • The rights of agency workers in comparison to those who are directly employed.

The new guidance is available on the ACAS website.

ICO publishes new guidance on legitimate interests

The Information Commissioner's Office (ICO) has published detailed guidance on the legitimate interest basis for processing data, which can be found on the ICO website.

The GDPR, which comes into force on 25 May 2018, contains 6 lawful bases for processing personal data and 'legitimate interests' is the most flexible, the ICO even states that it could in theory be applied to any type of data processing for any reasonable purpose. For this reason the ICO have felt the need to publish further guidance, so that the principle is applied in a lawful, fair and transparent way.

Employment tribunal Vento bands uprated from 6 April 2018

Vento bands for awards for injury to feelings in discrimination cases have been uprated, in line with the Retail Price Index and the case Simmons v Castle. For claims in England and Wales, on or after the 6 April 2018, the following bands will apply;

  • A lower band of £900 to £8,600 (for less serious cases).
  • A middle band of £8,600 to £25,700 (for cases that do not merit an award in the upper band).
  • An upper band of £25,700 to £42,900 (for the most severe cases). In exceptional circumstances, awards can exceed £42,900

HMRC updates Employment Income Manual (EIM) in light of changes to taxation of termination payments

HMRC have revised the EIM and inserted new pages to reflect the changes to taxation of termination payments that came into force on the 6th April 2018. The updated manual can be found here.

For further discussion on frequently asked questions on the new taxation rules read our FAQs in this month's bulletin.


Employers are reluctant to carry out background checks on international workers

A recent survey indicates that 40% of UK employers are failing to run appropriate background checks on international workers compared to 78% of background checks being run on domestic workers.

Background checks on potential employees can include everything from checking qualifications, obtaining personal references, running criminal background checks to reviewing employee's social media profiles.

For an employer to secure a statutory excuse for hiring illegal immigrants, they must obtain originals to prescribed documents which should be inspected and verified in the presence of the employee and copies taken, which clearly label the date that verification took place.

Employers have reported the procedure is too time consuming, expensive and complicated. However, if employers fail to confirm an employee has a legal right to work in the UK, they will likely be left with no defence to possible civil sanctions and criminal penalties. With upcoming GDPR and Brexit on the horizon, it is more important than ever for employers to take the necessary steps to verify migrant's right to work in the UK.

One in ten employers have failed to report their gender pay gap

According to the BBC, over 1,500 companies that were required to report their gender pay gap have failed to do so. The chief executive of the Equality and Human Rights Committee (EHRC), Rebecca Hilsenrath, has said that gender pay gap reporting "is the law, it's not an option. It is the right thing to do, and we will be enforcing against all those organisations which failed to meet the deadline."

In the first instance it appears that the EHRC will be contacting those employers that have failed to report and reminding them of their legal obligation to do so, they will have 28 days to respond. The EHRC will then look to issue terms of reference for the enforcement process, which they are keen to emphasise will be public.

We will begin to see in the next month how the EHRC handles the enforcement process, considering the significant budgetary cuts it has faced in recent years.

For our take on the key trends to emerge from the first round of gender pay gap reporting read this month's gender pay gap article.

Tags: Employment and Pensions2018