Frontline: UK Employment Law Update April 2018

This month, in light of the Windrush scandal, Yuichi Sekine provides a suggested path through some common difficulties encountered by employers when seeking to check their employees' right to work in the UK.

Our case updates address three important decisions relating to discrimination, ranging from a finding that a long-hours culture can trigger an obligation to make reasonable adjustments for disabled employees to an acknowledgement that failing to preserve the confidentiality of transgender employees can constitute gender reassignment discrimination. We also consider the remedies available under the Working Time Regulations and the obligations on employers when providing opinion-based references.

In this month's legal update, we cover the prospect of enhanced paternity rights for fathers and the EHRC's recommendations for improved workplace protections against sexual harassment.

We also bring you an immigration update regarding the closure of Universal Jobmatch and an on-demand link to watch our latest webinar: On your marks, get set, GDPR.

Evidencing the Right to Work: Lessons from the Windrush scandal

Yuichi Sekine, Associate

The Windrush scandal has highlighted to the nation the complexities involved with enforcing immigration compliance across a diverse population, a problem long-recognised by employers seeking to evidence their employees' right to work. In this article, our UK Head of Business Immigration, Yuichi Sekine, identifies some common difficulties and provides guidance for organisations faced with 'right to work' issues.

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Watch now!

GDPR for HR webinar

Catch up on the discussion between International HR Services team members Catharina Klumpp (Germany), Zoltan Tarjan (Hungary), Mary-Ann Staar (Belgium) and Sam Rayner (UK) as they chew the fat on the areas of the GDPR of which HR functions should be aware.

Watch here

'Universal Jobmatch' to be replaced by 'Find a Job' in June 2018

What is happening?

On 14 May 2018, the government recruitment service 'Universal Jobmatch' will be replaced by 'Find a Job'. Access to Universal Jobmatch will be available until 17 June 2018, however, it is important to note that existing accounts will not be transferred to 'Find a Job' once Universal Jobmatch is shut down.

Why is it important?

As a result of the above, following 17 June 2018 it will not be possible to access 'Universal Jobmatch' accounts. This means that all companies with sponsor licences under the Tier 2 (General) scheme must download any documents which they believe might be required in respect of advertising and Resident Labour Market Test (RLMT) evidence.

What are the RLMT obligations?

The RLMT is designed to protect the UK labour market by ensuring that a company does not sponsor a migrant worker if there is a suitably qualified settled worker for the role. Unless an exemption applies, sponsoring employers are required to complete a RLMT by advertising the role for a period of 28 days using Home Office-approved media, which will usually be online recruitment platforms. Where the proposed salary for the role is less than £73,900 one of the platforms must be Universal Jobmatch (or Find a Job after 14 May 2018) and employers are required to retain various evidence – including screenshots from the website - to demonstrate that the RLMT has been properly completed.

Further questions?

If you have any further questions on the RLMT, or on your company's immigration requirements more generally, please contact a member of our immigration team: [email protected] or [email protected].

Case Summary

Injured feelings irrelevant under the Working Time Regulations

Gomes v HigherLevel Care Limited (Court of Appeal)

The Court of Appeal has confirmed that compensation for ‘injury to feelings’ cannot be awarded where an employer provides inadequate rest breaks under the Working Time Regulations 1998. 

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How to give opinionated references

Hincks v Sense Network Ltd (High Court)

The High Court has held that where a reference contains opinions founded on the outcome of previous investigations into the relevant employee’s conduct, the referee need not inquire into the procedural fairness of those investigations in order to avoid claims for negligent misstatement.

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Pre-cancerous condition a disability under the Equality Act

Lofty v Hamis (t/a First Café) (Employment Appeal Tribunal)

The EAT has found that an employee with a pre-cancerous form of melanoma was disabled for the purposes of the Equality Act 2010 and cautioned employers against drawing artificial distinctions between different types of cancer, or those at different stages, when considering the issue of deemed disability.

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Long hours culture can trigger disability discrimination

United First Partners Research v Carreras (Court of Appeal)

The Court of Appeal has held that an employer's expectation that its employees work long hours may amount to a provision, criterion or practice ("PCP") under UK discrimination legislation, in respect of which it is required to make reasonable adjustments when this arrangement risks putting a disabled person at a substantial disadvantage.

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Managing transgender employees

Miss A de Souza E Souza v Primark Stores Ltd (Employment Tribunal)

Employers who fail to preserve the confidentiality of transgender employees may be held vicariously liable for gender reassignment discrimination.

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Legal Updates

Enhanced workplace rights for fathers on the horizon?

The Women and Equalities Committee has proposed a number of improvements to fathers’ workplace rights, to reflect more accurately the pace of societal changes in traditional gender roles, meet the increased demand for role flexibility and to assist in addressing underlying causes of the gender pay gap.

Evidence cited in their latest report notes that the current limitations on claiming statutory paternity pay (“SPP”), which is set at a modest £145.18 a week or 90% of average weekly earnings (whichever is lower), may disincentivise men from taking paternity leave. The Committee encourages the government to undertake a new fact-finding survey to assess the effectiveness and take-up of paternity leave and pay, as well as unpaid parental leave and the statutory right to time off for dependants.

In addition, the report makes suggestions for particular legislative changes, in particular recommendations that the government should:

• remove the current SPP qualifying period, increase the SPP allowance to 90% of earnings (subject to a maximum cap) and introduce new paternity allowances for self-employed fathers;
• provide fathers with a day-one right to paid time off to attend antenatal appointments, and enhance rights for agency workers;
• rethink the current shared parental leave framework, and in its place introduce an additional 12-week paternal leave entitlement for fathers in the first year following birth; and
• make paternity a protected characteristic under the Equality Act 2010.

A copy of the report, entitled Fathers in the Workplace, can be found here. 

EHRC highlights deficient workplace protections against sexual harassment

Following a series of recent high-profile allegations, the Equalities and Human Rights Commission (“EHRC”) has published a new report setting out a number of reform proposals aimed at addressing perceived inadequacies in the protections afforded to victims of sexual harassment at work.

The recommendations centre on the suggestion that employers should be placed under a specific and enforceable duty of care to prevent sexual harassment in the workplace. This would be supplemented by, amongst other things, a new statutory code of practice which sets out key expectations and a requirement on organisations to publish sexual harassment policies online, in a manner similar to current modern slavery requirements. The EHRC also considers that tribunal time limits for victims to bring claims should be extended to six months.

Furthermore, the report seeks new legislation which would render as void any non-disclosure agreement or confidentiality provision which may prevent the disclosure of past, current or future acts of discrimination or harassment. A new statutory code of practice would flesh out this prohibition and highlight best practice in relation to permissible confidentiality clauses.

The report, entitled Turning the tables: ending sexual harassment at work, can be read here.

Updated Vento bands published

New guidance in England, Wales and Scotland has been published on the Vento bands, which assist tribunals when determining injury to feelings awards in discrimination cases.

The new guidance, which will only apply to claims which are issued on or after 6 April 2018, confirms an expected increase in compensation bands (based on the Retail Price Index) which now provide for the following remedies;

i. an upper band of £25,700 to £42,900, reserved for the most serious cases of discrimination;

ii. a middle band of between £8,600 and £25,700 for serious cases which do not merit a higher award; and

iii. injury to feelings awards of between £900 and £8,600 for less serious cases of discrimination or in response to one-off or minor forms of harassment. 

Gender pay gap reporting: next year’s snapshot date has now passed

The deadline for large private and voluntary sector employers to publish their first gender pay gap (“GPG”) results was 4 April 2018.

Preliminary results show that 78% of large private companies pay men more than women and only 8% of employers report no pay gap at all. The finance sector had the largest reported GPG of 35.6%, whilst the accommodation and food services sectors reported the smallest pay gap, with an average median gap of 1%. Full results can be found on the government’s portal here.

In the media furore that has followed, it would be easy for employers to forget that GPG reporting is an ongoing, evolving duty and that the ‘snapshot date’ on which next year’s figures need to be based has just passed (being 5 April, for qualifying private businesses and charities). Organisations should now take steps to begin updating their reports within a year of this date.