Frontline: UK Employment Law Update September 2017

In our Case Summary feature, we review EAT decisions relating to the discrimination of part-time employees and Asda's gender pay gap, along with an important High Court case which confirms that a default suspension of employees suspected of misconduct can constitute a breach of contract, entitling those suspended to resign in response and claim constructive dismissal.

Our Legal Update takes a brief look at recent government comments on next steps following the abolition of the tribunal fees regime; the new Data Protection Bill, which will implement derogations and exemptions from the GDPR; and the significantly increased Vento guidelines, which will lead to higher damages awards in respect of 'injury to feelings' suffered as a result of unlawful discrimination.

We also bring you details of our upcoming events and our latest edition to the Frontline family.

Frances Vickery looks past the dramatic headlines, and extracts practical lessons for employers seeking to understand the impact of the European Court of Human Rights' most recent ruling in Bărbulescu v Romania. Although it is now beyond doubt that employees have the right to a private life at work, and that any monitoring of employee communications should be both transparent and proportionate, taking steps to keep track of the use of corporate IT systems and devices is by no means prohibited provided that adequate safeguards are implemented.

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Good news for part-time workers – pay proportionality is here

British Airways v Pinaud (EAT)

Where a part-time employee earns 50% of a 'full-time' salary, but works proportionately more than 50% of 'full-time' hours, this constitutes less favourable treatment under UK law (even if required under their contract). In deciding whether or not such treatment is legally justified (as a proportionate means of achieving a legitimate aim), tribunals should consider statistical evidence put before them.

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Asda Stores Ltd v Brierley and others (EAT)

The EAT has dismissed an appeal from Asda and ruled that retail store workers are entitled to compare themselves to those based in distribution centres for the purposes of their equal pay claims. The ruling is the latest development in ongoing proceedings brought by over 7,000 current and former employees of the supermarket. It upheld the previous ET decision that the claimants, a group of predominantly female employees working in Asda's retail stores, can compare themselves to a group of higher-paid, largely male employees working in Asda's distribution depots, for the purposes of an equal pay claim based on 'work of equal value'.

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Agoreyo v London Borough of Lambeth (High Court)

The High Court has confirmed that, even in cases involving serious employee misconduct, suspension should not be a 'knee-jerk', default reaction on the part of employers. Decisions to suspend that are not carefully considered, explained and properly documented can constitute a breach of the implied term of trust and confidence, entitling the suspended employee to resign in response and claim constructive dismissal.

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Tribunal fees: whispers from the House of Commons

After an initial flurry of activity following the Supreme Court's decision in R (Unison) v Lord Chancellor, which invalidated the Employment Tribunal fees regime with immediate effect, further guidance on the operation of the 'post-fees' tribunal system has been eagerly awaited.

On 5 September 2017, Dominic Raab MP, Minister of State, gave some further insight into the UK government's position in this area. He stated, in particular, that:

• Arrangements to refund those who have paid fees in the past are being put in place and the practical, detailed arrangements will be announced shortly.
• Although the cost of Employment Tribunals last year was £68 million, only £8 million in fact came from fees. The balance between the cost of providing the system and the contribution of the taxpayer using it had been "wrong". In addition to putting an end to charging fees, the government is looking to learn lessons for the future.
• On considering fairer ways of sifting out unmeritorious claims, the government is looking to reinforce the role of Acas, given that conciliation and the number of cases which were referred to conciliation has had a 'strong impact on reducing the number of cases that need to go to court or a tribunal'.

A copy of the debate can be found on the House of Commons Hansard website here, and our detailed commentary on the Unison decision can be found here.

Following a consultation process, the Presidents of the Employment Tribunal in England & Wales and Scotland have announced updated, and significantly increased, bands for "injury to feelings" awards in discrimination claims.

The Presidents had sought views on whether the original bands (known as the Vento bands) used by Employment Tribunals when making awards for "injury to feelings" in discrimination claims should be increased in line with the Retail Price Index ("RPI"). Their joint Presidential Guidance, published on 5 September 2017, will apply to claims brought in the Employment Tribunals on or after 11 September 2017 and will be reviewed again in March 2018 and annually thereafter.

The new bands for Employment Tribunals to consider when making awards for "injury to feelings" are as follows:

• Lower band: £800 to £8,400 (to apply in the less serious cases of discrimination);
• Middle band: £8,400 to £25,200;
• Upper band: £25,200 to £42,000 (to apply in the most serious cases of discrimination); and
• Exceptional cases of discrimination could attract an "injury to feeling" award in excess of £42,000.

The increases are likely to result in an overall increase in the level of awards for discrimination claims brought within the Tribunal system.

The UK Government has published its new Data Protection Bill, which will implement derogations and exemptions from the General Data Protection Regulation ("GDPR"), while closely following the principles currently set out in the Data Protection Act 1998.

The EU's GDPR will take effect on 25 May 2018 and – despite Brexit - will be retained in UK law; the lengthy new Bill has extended the GDPR to non-EU matters, incorporated a distinct national security regime, given effect to the Law Enforcement Directive and created two new criminal offences, as well as implementing the exemption and derogation powers in the GDPR. The Data Protection Act 1998 will be repealed.

A detailed summary of the new Bill, prepared by our Privacy & Data Protection colleagues, can be found here.

Our assessment on the Macron Reforms

12 October 2017, 08:00 - 10:00, Bird & Bird 12 New Fetter Lane, London, EC4A 1JP

Join us for breakfast, where Benjamine Fielder and Chris Ivey, members of our dedicated employment team in France, will be in London to provide their assessment on the proposed reforms and the challenges that this legislative and social movement will bring for those operating in this complex jurisdiction.

Click here to find out more and RSVP.

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

Partners from our international team of dedicated employment experts will be joining forces at our London office for a global horizon-scanning breakfast, giving a whistle-stop tour of the latest developments and trends affecting the HR community across the world, with practical insight as to how businesses can respond to these developments. Topics will include the GDPR, AI in the workplace, the gig economy and many more.

Click here to find out more and register your interest.

Frontline expands again!

Following our announcement last month of Frontline Nordic, which combines the insight of our employment teams in Denmark, Finland and Sweden, we are pleased to announce the arrival of Frontline APAC, a quarterly newsletter that gives you the low down on the significant changes that have come into effect across Australia, Hong Kong, the People's Republic of China (PRC) and Singapore.

Click here to sign up for any of the Frontline versions.