Frontline UK Employment Law Update September 2018

Welcome to the September 2018 edition of Frontline UK.

This month, Associate Sam Rayner considers some key issues for employers seeking to justify the use of sensitive categories of personal data, in line with their enhanced obligations under the GDPR.

Our case updates focus on some interesting developments regarding victimisation and discrimination claims under the Equality Act. We also provide an overview of the UK Government's proposals for an EU citizen "settlement scheme" and a new seasonal relief pilot for agricultural workers.

Finally, our legal updates discuss new ACAS guidance on employment references and HMRC's new approach to enforcing the national minimum wage following TUPE transfers.

Sensitive personal data in HR functions: climbing the ladder of legal bases

The GDPR's entry into force has forced HR teams to re-evaluate the ways in which they justify the use of personal data relating to their employees, applicants and contractors. Whilst compliance priorities will vary between organisations, all UK HR functions should be particularly mindful of their enhanced obligations to satisfy multiple conditions under both the GDPR and the UK's new Data Protection Act 2018 ("DPA 2018") before collecting certain special categories of personal data.

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Case Summary

Bad faith equated with dishonesty in victimisation claims

Saad v Southampton University Hospitals NHS Trust (Employment Appeal Tribunal)

The EAT has clarified that whether a claimant’s “protected act” (such as a complaint of discrimination under the Equality Act 2010) is made in bad faith, and so cannot be relied upon for the purposes of a victimisation claim, depends primarily on their subjective belief in the veracity of the evidence, information or allegation constituting such act; not on the potential existence of an ulterior motive underlying it.

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No disability discrimination in delayed ill-health retirement procedure

Dunn v Secretary of State for Justice and anor (Court of Appeal)

The Court of Appeal has confirmed that the EAT was entitled to hold that claims of disability discrimination could not succeed following the application of an unreasonable and unfairly delayed ill-health retirement scheme, where such delay was primarily due to individual incompetence and procedural deficiencies rather than the claimant’s disability.

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Legal Updates

ACAS publishes new guidance on references

Most UK employers will be familiar with making and receiving requests for references for job applicants. Recent guidance published by ACAS provides useful assistance in this regard to clarify employers' obligations, relevant content and the implications of making conditional and unconditional job offers. All employers should be aware of their obligations when providing fair and accurate references and would be well advised to operate a formal policy to ensure all requests are handled both appropriately and consistently.

For more information, the full ACAS guidance is available here.

New employers liable for NMW underpayments after TUPE transfer

HMRC has confirmed that it will now enforce outstanding liabilities and penalties for failing to pay the national minimum wage (NMW) to employees subject to a TUPE transfer against their new employer – the transferee. This represents a significant departure from previous practice, under which the previous employer – the transferor – would retain liability for historic NMW underpayments accruing prior to the relevant TUPE transfer.

This new approach was implemented on 2 July 2018. The significant potential penalties for failing to pay NMW (including a punitive amount of up to 200% of outstanding arrears, up to £20,000 per worker) highlights the need for careful due diligence as part of any transaction or arrangement to which TUPE could apply.

An update from HMRC can be found here.

Immigration Update

Further details of the UK’s EU Settlement Scheme published

The EU Settlement Scheme is the mandatory online registration system for EU nationals to protect their rights to work, pensions, healthcare and other benefits in the UK after Brexit. The UK Home Office recently published caseworker guidance revealing further details of the operation of the system, providing clarity on eligibility, evidence requirements and rules for family members. The Scheme is currently operating in its private pilot stage. It is expected to be phased in over the coming months, becoming fully open by the end of March 2019.

Organisations should identify the implications of the EU Settlement Scheme for their employees, and consider the development of a communication plan to inform and support employees with registration. We encourage businesses to take proactive steps at this stage to ensure all employees retain the right to work in the UK and avoid business interruption. Our dedicated business immigration team offers bespoke mobility planning services, including training, contingency planning, advice on communication strategies and surgery services for complex queries.

The recent Home Office guidance is available here.

Seasonal visa relief for non-EU agricultural workers

On 6 September 2018, the government announced a new pilot visa scheme for non-EU migrants seeking seasonal agricultural work on UK fruit and vegetable farms. Under the programme, visas for up to six months will be granted to up to 2,500 non-EU migrant workers per year to accommodate seasonal demands. The pilot will run from Spring 2019 until the end of December 2020.

Agricultural employers will likely welcome this announcement in view of the ongoing uncertainty surrounding the availability of workers from the EU. Organisations would be well advised to review their foreign recruitment strategy to maximise the potential benefits of this scheme and to ensure they are best prepared for peak production periods. Our dedicated business immigration team would be delighted to assist with any queries you may have.

A press release from the Home Office can be found here.

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