Frontline: UK Employment Law Update January 2018
Welcome to the January 2018 edition of Frontline UK.
With the festive period well and truly over, we are fully into the swing of 2018 and back with a jam-packed edition of Frontline.
In light of the recent media attention on gender pay issues, Associate Emily Clark puts gender pay gap reporting centre stage, highlighting the dangers of conflating this regime with employer obligations of equal pay and offers top tips on how you can make this a good news story.
Our Case Summary shines the spotlight on the EAT, with a series of findings concerning perceived disability discrimination; rights to compensatory rest breaks under the Working Time Regulations 1998; the extent of whistleblowing protection when disclosures are made out of self-interest; and, the limited admissibility of 'protected conversations'.
We kick off our Legal Updates with an Immigration Special, prepared by the newest member of our team, Yuichi Sekine, Head of Business Immigration, UK. Other updates address the surge in tribunal claims after fees were scrapped towards the end of last year; potential pension auto-enrolment reforms; changes to the basic DBS criminal record check procedure; and, offering a second look at gender pay gap reporting, the Equality and Human Rights Commission's consultation on its enforcement strategy for non-compliance.
If that wasn't enough, we've also got details on our next employment webinar, Never Trade a Secret and an invite to Bird & Bird's Brexit seminar.
P.S. Frontline Germany is coming soon - watch this space for more details!
Making your gender pay gap report a good news story
The dispute at the BBC regarding women’s pay has put the new gender pay gap reporting obligations in the spotlight. With two months before the deadline for employers to publish their gender pay gaps, Associate Emily Clark asks what we can learn from the BBC and other organisations that have already reported and how to make this a good news story.
Don't miss Bird & Bird's Brexit Seminar
Wednesday 7 March 2018, 16:00 - 19:30pm
Bird & Bird 12 New Fetter Lane, London, EC4A 1JP
Join us in London for a panel discussion on how businesses can plan effectively for future changes in the regulatory and polictical environment. The panel of Bird & Bird speakers, featuring our very own Jonathan Goldsworthy, will be joined by guest speaker, Ben Digby, the CBI's Director of International Trade.
Register here >>
Case Summary
Perceived disability can amount to direct discrimination
The Chief Constable of Norfolk v Coffey (Employment Appeal Tribunal)
The EAT has upheld a finding of direct disability discrimination in relation to a non-disabled job applicant, whose application was rejected on the basis of perceived disability.
Creaking compensatory rest policies exposed
Crawford v Network Rail Infrastructure (Employment Appeal Tribunal)
The EAT has confirmed that where a worker is excluded from the general right to rest breaks under the terms of the Working Time Regulations 1998 ("WTR"), their employer must nevertheless allow them an equivalent period of compensatory rest comprising a single, uninterrupted break of at least 20 minutes wherever possible.
Whistleblowing: Disclosures made solely in self-interest are not protected
Parsons v Airplus International Limited (Employment Appeal Tribunal)
The EAT has held that disclosures made by an employee solely out of concern for her own potential liability were not in the public interest and did not amount to protected disclosures for the purpose of whistleblowing protection.
When "protected conversations" are admissible in evidence
Basra v BJSS Limited (Employment Appeal Tribunal)
Tribunals can hear evidence of pre-termination negotiations in an unfair dismissal claim when the date of termination is in dispute, the EAT has held.
Legal Updates
All eyes on Immigration
Update prepared by our new Head of Business Immigration in the UK, Yuichi Sekine.
Tribunal claims skyrocket in wake of fees abolition
In December 2017, the Ministry of Justice released the latest statistics for employment tribunal claims for July to September 2017. The total number of single-applicant claims increased by 64% from the same point in 2016, reaching its highest total in four years. The number of claims lodged by multiple applicants decreased by 15% over the same period.
It is too early to tell whether the initial figures will be maintained in subsequent quarters, but the increases suggest that the abolition of the employment tribunal fees will have a profound effect on the number of claims submitted to tribunals, which in turn may add further pressure onto an already under-resourced tribunal system.
Pension auto-enrolment reforms
The Department for Work and Pensions (DWP) has announced reforms to the automatic enrolment regime that will reduce the lower age threshold from 22 to 18, and ensure that contributions are calculated from the first pound earned, rather than the lower earnings limit. These reforms aim to be implemented in the mid-2020s, subject to stakeholder decisions on issues such as the implementation approach, an analysis of the increased costs for business, and an assessment of the impact of the increases in statutory minimum contribution rates due in 2018/19.
These reforms are set out in the DWP's Automatic Enrolment Review 2017: Maintaining Momentum, published in December 2017. The report includes plans to review auto-enrolment contribution levels after the implementation of the 8% contribution rate in 2019. The DWP has also confirmed the earnings trigger and qualifying earnings band for 2018/9, which will see the former frozen at £10,000, and the lower and upper ends of the latter continuing to be set in line with the National Insurance contributions limits.
For more information, the full DWP report can be found here.
Changes to DBS basic check applications
The government's basic criminal records check procedure has now become digital, with the application for a Disclosure and Barring Service basic disclosure certificate moving online from January 2018. Disclosure Scotland, which had been previously been responsible for handling applications for the certificates, has announced that it will no longer be dealing with such requests from England and Wales.
The new process aims to reduce the waiting time for the DBS disclosure certificates significantly. Employers will still be able to use the services of a Responsible Organisation to apply for basic checks on its behalf. For details of organisations registered with the DBS to provide this service, see here.
Gender pay gap: Equality and Human Rights Commission consults on enforcement strategy
The Equality and Human Rights Commission (ECHR) has opened a consultation on its enforcement strategy for pursuing employers who fail to comply with their gender pay gap reporting obligations. The consultation requests responses from businesses, representative bodies and anyone with an interest in pay gaps, on its planned approach to enforcing the gender pay gap regulations. Consultation on the draft policy will close on 2 February 2018.
The ECHR confirmed that in the first instance it will seek to resolve non-compliance through informal resolution, but will ultimately pursue formal enforcement using its wide range of powers. These include seeking a court order where an employer fails to comply with such agreement; the issuance of 'unlawful act' notices, which require an employer to prepare a draft action-plan confirming how they will remedy their breach; and seeking unlimited fines and summary convictions where other measures have not secured compliance.
For more information, the full draft policy " Closing the gap: enforcing the gender pay gap regulations" is available here. You can take part in the consultation here.
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