Welcome to the latest edition of Frontline UK.
In our feature article, Associate Stephanie Creed focuses on the lessons learnt in the employment sphere since the GDPR's entry into force one year ago and highlights key areas of focus over the next 12 months.
Our case update considers the latest Court of Appeal authority on whether voluntary overtime payments should form part of holiday pay, the first reported decision on the "positive action" provisions under the Equality Act 2010, a helpful decision for employers who do not enhance shared parental leave in line with maternity entitlements and a judgment which confirms that "one off" acts of harassment can lead to substantial compensation awards.
We also include a comprehensive Immigration Update covering the latest developments from the Home Office, as well a Legal Update feature which discusses the prospect of enhanced redundancy protection for pregnant workers.
In the run up to 25 May 2018 when the General Data Protection Regulation 2016 (or GDPR for short) came into force, it was clear that data protection compliance and the level of priority given to HR data varied significantly between employers. One year on, what have we learnt and what should employers focus on over the next twelve months?
East of England Ambulance Service NHS Trust v Flowers and Others (EWCA)
The Court of Appeal has confirmed that entirely voluntary overtime payments should be factored into the calculation of holiday pay where they are made with sufficient regularity to justify the label of "normal" remuneration.
Furlong v Chief Constable of Cheshire Police (ET)
In the first reported decision on the scope of an employer's ability to apply "positive action" measures in recruitment and promotion exercises, an Employment Tribunal has confirmed a restrictive approach whereby candidates can only be preferred on the basis of an underrepresented protected characteristic in genuine "tie breaker" scenarios as between individuals who are equally qualified for a given role. The application of blanket policies or selection criteria which promote particular protected characteristics generally are not permitted, regardless of whether their ultimate aim is the (seemingly legitimate) promotion of diversity within a workforce.
Ali v Capita Customer Management Limited; Hextall v Chief Constable of Leicestershire Police (CA)
The Court of Appeal has held that it was not discriminatory (either directly or indirectly) for an employer to pay male employees on shared parental leave less than the enhanced levels of pay (over and above statutory entitlements) available to female colleagues whilst on maternity leave.
Base Childrenswear Ltd v Otshudi (EAT)
The EAT has confirmed that "oneoff" acts of discrimination can justifiably give rise to substantial injury to feelings awards which fall within the middle "Vento" band (i.e. £8,600 £25,700). This case also implies that the ACAS Code of Practice on Disciplinary and Grievances applies equally to grievances submitted after the termination of employment and that unreasonable noncompliance by the employer can therefore give rise to a 25% uplift on total compensation.
A spotlight on recent immigration law changes: latest developments from the Home Office
The ongoing election of the new leader of the Conservative Party has brought Brexit related immigration issues back into the spotlight and we expect immigration to continue to dominate in the months leading up to the UK's planned EU exit on 31 October 2019. There have already been some significant developments over recent weeks, although not all of the proposed changes directly relate to Brexit.
Significant new redundancy protections on the horizon for pregnant workers
The Women and Equalities Select Committee recently published its response to the Department of Business, Energy & Industrial Strategy's consultation on proposals to broaden redundancy protection for new mothers, from the moment that they notify their employer of their pregnancy until six months after their return from maternity leave.
On 20 May 2019, Maria Miller MP, chair of the Women and Equalities Committee, introduced The Pregnancy and Maternity (Redundancy Protection) Bill 2019. This is aimed at protecting pregnant women and new mothers from redundancy. The new bill as proposed seeks to prohibit outright making employees redundant during pregnancy, maternity leave and for six months after the end of maternity leave (except where the employer ceases to carry on business where the pregnant woman or new mother is employed).
While government proposals already seek to widen the ambit of existing protection under existing regulations, the new bill proposed by Miller goes significantly further with its proposal for a total prohibition on redundancy, which is more in line with the German model than the current UK position.
The new bill would also protect women who have had the misfortune of experiencing a stillbirth or miscarriage, by providing them with the same protections afforded to new mothers.
Most importantly, the new bill is said to have crossparty support. Therefore, a significant change in the law could be on the horizon.