Welcome to the March 2018 edition of Frontline UK.
With only a few weeks to go until the General Data Protection Regulation ("GDPR") becomes directly applicable on 25 May 2018, many HR functions are entering a crucial period in which their privacy and data protection standards will need to be upgraded to meet new and enhanced legal requirements. In this month's feature article, associates Tom Mintern and Sam Rayner provide a practical, 8-point checklist to help organisations focus on any outstanding GDPR compliance actions which may be necessary within the context of their HR operations.
This month's case updates address the EAT's preference for a 'package' - rather than 'term by term' - approach to the equal treatment principle under the Agency Workers Regulations 2010; its new guidance on the correct approach to assessing service fragmentation under TUPE; a Court of Appeal decision which appears to relax the conditions for successful constructive dismissal claims; and a CJEU judgment on when periods spent on "stand-by" should constitute working time for which payment is due.
Our legal update notes recent Acas statistics which illustrate a continued surge in employment tribunal claims following last year's abolition of the fee regime, along with the new limits for statutory payments and tribunal awards that will apply from 6 April 2018. We also consider recent comments from the UK's Supreme Court which appear to question the continued accuracy of an established principle of unfair dismissal law, the Burchell test.
The GDPR dramatically heightens expectations on businesses in the way that they manage, use, store, secure and otherwise process personal data. HR and Talent functions act as the custodians of significant volumes of often sensitive or confidential personal data within any organisation, and must therefore take centre stage as this new and demanding law bites.
Keep on track with our HR-specific 8-step action plan for GDPR compliance.
Tune in to our panel of employment law experts as they discuss hot topics and trends affecting the HR community.
APAC Sexual Harassment Webinar
11 April 2018, 10:00 CST, 11:00 JST, 12:00 AEST
Hear from our experts across Asia-Pacific on the topical issue of sexual harassment in the workplace.
On your marks, get set, GDPR
19 April 2018, 13:00 CET, 12:00 BST (UK)
Join members of our international team from Belgium, Budapest, Germany and the UK as they discuss HR's role in complying with the new European regulation.
Watch previous webinars here.
Package approach to agency worker equality rejected
Kocur v Angard Staffing Solutions Ltd (EAT)
Where agency workers are entitled to the 'same basic working and employment conditions' as direct recruits under the Agency Worker Regulations 2010, compliance will be assessed in relation to individual terms rather than with reference to the overall package offered. This means that certain less favourable entitlements cannot generally be offset by other benefits, such as enhanced rates of pay.
TUPE or not TUPE? A case of fragmented services
London Care Ltd and Carewatch Care Services Ltd v Henry and ors (EAT)
The EAT has confirmed that when assessing the potential existence of a ‘service provision change’ under TUPE, the effect of any service fragmentation should be considered at an early stage in any analysis; namely when determining whether the transferred activities will remain ‘fundamentally the same’ following the reallocation. Where fragmentation changes the nature or scope of the activities to be performed by a subsequent service provider, TUPE will not apply.
Employee succeeds in constructive unfair dismissal without knowledge of breach
Mwanahamisi Mruke v Saeeda Kamal Khan (Court of Appeal)
The Court of Appeal has confirmed that employees can succeed in claiming constructive unfair dismissal even when they are unaware that their rights have been breached. The fact that the claimant employee, an uneducated and illiterate Tanzanian national, had been unaware of her entitlement to the national minimum wage ("NMW") did not prevent a failure to pay it amounting to a fundamental breach of contract.
When should an employee be paid for time spent on stand-by?
Ville de Nivelles v Matzak (Court of Justice European Union)
Stand-by time spent at home by an employee qualifies as working time in circumstances where a duty to respond to calls within a time period is short enough significantly to constrict the employee's opportunity to pursue other activities, the ECJ has held.
The beginning of the end for the Burchell test?
For decades, unfair dismissal cases involving employee misconduct have hinged on the application of a test laid down in British Home Stores Limited v Burchell (the "Burchell test"). This states that a dismissal for misconduct will only be fair if, at the time of the dismissal, the employer: (i) honestly believed the employee to be guilty of misconduct; (ii) had reasonable grounds for such a belief; and (iii) at the time at which it formed the belief, had carried out reasonable investigations into the allegations.
In their recent decision in Reilly v Sandwell Metropolitan Borough Council ( UKSC 16), however, certain members of the Supreme Court have cast doubt on the continued accuracy of this central tenet of unfair dismissal law. Lord Wilson suggested such an inquiry is only relevant when establishing the initial reason for dismissal, rather than its underlying fairness, while Lady Hale thought 'it is not difficult to think of arguments' against its continued application. In the absence of specific argument on the point, however, neither provided any definitive conclusion. It remains to be seen whether these comments provide impetus for further challenge; but it is clear that the issue is open.
A full copy of the judgment can be found here.
The surge in employment tribunal claims following the abolition of the claimant fee regime shows no sign of abating. A recent Acas update suggests that notifications under the mandatory early conciliation regime have jumped on average by 500 per week (from 1,700 to 2,200) since July 2017. There has also been a 57% net increase in ET1 claims issued in the Employment Tribunal, compared with corresponding periods last year. This is consistent with an observable trend amongst our clients, whom we regularly assist on varied contentious matters.
More details on the latest Acas statistics can be found here.
Tribunal compensation limits will increase on 6 April 2018. The maximum compensatory award for unfair dismissal will rise from £80,541 to £83,682; and the maximum amount of a week's pay, used to calculate statutory redundancy payments and various awards including the basic and additional awards for unfair dismissal, will also increase from £489 to £508.
For cases involving dismissal, the new limits will apply where the effective date of termination falls on or after 6 April 2018.
For full guidance on the new rates and thresholds for employers, click here.