Frontline: UK Employment Law Update October 2017

In our Case Summary, we take a look at an EAT decision on whether misconduct investigations can ever be too thorough, a recent judgment regarding the jurisdiction applicable to claims brought by mobile employees and the Court of Appeal's finding that a misconduct dismissal on the grounds of insubordination was substantively fair, even though the refusal to work was in response to disability discrimination.

Our Legal Update takes a look at the Government's latest amendments to the Modern Slavery Act 2015 and provides a reminder of the obligations arising under the Criminal Finances Act 2017, which came into force last month and can lead to criminal liability where organisations fail to prevent the facilitation of tax evasion both in the UK and overseas. We also provide a short 'gig-economy' update, following recent developments in the Addison Lee and Uber proceedings.

We also bring you:

• Exciting details of Bird & Bird's plans to expand across the Atlantic;
• Our global HR horizon-scanning event; and
• Our new international webinar programme.

In light of the mounting sexual harassment allegations being made against film producer Harvey Weinstein, Associate Julian Bohm considers how the legal framework on harassment affects employers and how they can take a proactive approach to ensure they are doing all they can to address such issues.

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Can a misconduct investigation be too thorough?

NHS 24 v Pillar (Employment Appeal Tribunal)

The EAT has rejected a claim that an employer's disciplinary investigation was unreasonably detailed, and held that the employee's subsequent dismissal for gross misconduct was fair.

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Nogueira and Ors v Crewlink Ireland Ltd and Moreno Osacar v Ryanair (CJEU)

Employees carrying out work in two or more EU Member States may bring their claims before the courts of the Member State in which they perform the essential part of their duties, the CJEU ruled last month.

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Brian Rochford v WNS Global Services (Court of Appeal)

The Court of Appeal has decided that an employer's discriminatory conduct towards a disabled employee following an extended period of sick leave did not entitle the employee to refuse allocated work. A misconduct dismissal on the grounds of insubordination may be substantively fair even if the refusal to work is in response to discrimination.

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Government takes additional steps to combat modern slavery in the UK

The Modern Slavery Act 2015 requires commercial organisations which supply goods or services in the UK and have an annual turnover of £36m or more (including subsidiaries, wherever they may be based) to publish an annual slavery and human trafficking statement on their website, in respect of each financial year.

A new Modern Slavery (Transparency in Supply Chains) Bill 2017 had its first reading in the House of Lords this summer. The Bill seeks to strengthen the current anti-slavery regime in the UK by, for example:

• requiring public authorities, in addition to commercial organisations, to publish Transparency Statements;
• if an organisation’s transparency statement states that it has taken no steps to eradicate slavery and human trafficking from its supply chain and business, then it would need to explain the reasons why; and
• setting out a mandatory list of 6 items which organisations must cover in their transparency statements (these are presently optional).

The new bill will also seek to amend other legislation relating to public procurement. This will prevent a bidder, who falls within the scope of the bill, from participating in a public procurement procedure unless it has complied with the obligation to publish a transparency statement.

For more on this update and a review of transparency statements which have been published in the last year, please see our detailed analysis here.

Part 3 of the Criminal Finances Act 2017 entered into force on 30 September 2017, which means that organisations may now be criminally liable for failing to prevent the facilitation of tax evasion within both the UK and overseas. This may lead a form of vicarious liability, with potential criminal conviction and an unlimited fine, for organisations who fail to recognise and take appropriate steps to combat tax evasion amongst their workforce.

Organisations should note, in particular, that:

• both corporations and partnerships are within the scope of the new offences, wherever they are incorporated or formed;
• they do not need to be involved in, or aware of, any tax evasion in order for criminal liability to arise;
• the acts of any ‘associated person’ can lead to liability – this is a broad term that encapsulates an organisation’s employees, workers, agents and any other person who performs services on its behalf; and
• they will benefit from a statutory defence if, at the relevant time, reasonable ‘prevention procedures’ designed to mitigate tax evasion were in place. Such measures may include regular risk assessments, the implementation of new/updated policies (along with top-level commitment), detailed due diligence and revised training programmes.

Our dedicated tax team have prepared a detailed analysis here, along with a user-friendly flyer setting out how we can help you comply with the new requirements here. Employment partner James Froud’s recent insight can also be read as part of a CIPD article on the new regime, available here.

The recent surge of pro-worker decisions in the context of the ‘gig-economy’ shows no signs of slowing, with an Employment Tribunal now confirming that a group of Addison Lee taxi drivers were not self-employed and therefore are entitled to workers' rights, including the right to be paid the National Minimum Wage and to receive holiday pay. Associate Kate Hurn’s comments on the decision – and its broader implications for the gig economy - can be read here.

We also await the outcome of Uber’s appeal to the Employment Appeal Tribunal, following an Employment Tribunal decision earlier this year that classified its drivers as ‘workers’ on similar grounds. Whatever decision is reached, a trip to the Court of Appeal (and possibly the Supreme Court) seems likely…

Around the World with Employment Law: What's on the horizon?

9 November 2017, 08:30 - 11:00, Bird & Bird 12 New Fetter Lane, London, EC4A 1JP

Join us for a whistle-stop tour of the latest developments and trends affecting the global HR community.

Partners from our international team of dedicated employment experts from across our offices in Europe and Asia-Pacific will be discussing topics including AI in the workplace, the gig economy, Macron's labour reforms in France and many more.

Find out more and RSVP here.

Bird & Bird's International HR Services group has developed a programme of webinars aimed at in-house counsel and HR professionals.

Focused on hot topics and key legal developments affecting the HR community, each webinar will be delivered by a multi-jurisdictional panel of employment law experts from across our network of offices. Together, they will explore the legal and commercial impact of each of the chosen topics, as well as providing local insight from their respective jurisdictions and practical advice on what steps businesses need to take to stay ahead of the game.

The first webinar, 'To employee, or not to employee, that is the question' will focus on the blurred lines of employment across Europe and new forms of working relationships in the gig economy.

Click here to sign up.