Welcome to the August 2017 edition of Frontline UK. This month, soon-to-be Associate (and newest member of our London team!) Sam Rayner considers the global phenomenon that is the eSports industry, its developing workforce and the challenges faced by employers operating within its fast-changing regulatory environment.
In our Case Summary the hot spot is once again given to holiday pay calculations, as the EAT once again expands the scope of 'normal remuneration' that must be taken into account; we also look at the reversal of a recent decision on a non-compete clause for a relatively junior employee; and a case concerning sexual assault and medical examinations that will raise the viacrious liability alarm bells for employers.
Our Legal Update brings news on the UK's approach to Data Protection post-GDPR; the latest on the abolition of Tribunal fees; and the possible introduction of statutory bereavement leave.
We also bring you an update on some of our exciting plans, including the launch of our international Employment Law Zone App and the latest edition to the Frontline family.
The esports revolution: recognising and protecting the workforce
With huge international audiences, wide commercial engagement and astonishing revenue levels, esports is nothing short of a global phenomenon. However, as the industry's workforce grows, the employment risks rise. In this article, we consider the key issues for employers operating within this challenging area.
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Holiday pay: the EAT turns up the heat on employers (again)
Dudley Metropolitan Borough Council v Willetts and ors (EAT)
Entirely voluntary overtime, out-of-ours standby, and callout allowance payments that are made with sufficient regularity, fall within the scope of 'normal remuneration' and should therefore be included when calculating holiday pay. Mileage allowances should also be taken into account to the extent that they are taxable as a benefit in kind.
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"Interested in" enforceable covenants? Don't prohibit shareholdings in competitors
Egon Zehnder Ltd v Mary Caroline Tillman (Court of Appeal)
The Court of Appeal has reversed a recent High Court decision, confirming that a non-compete clause preventing an employee from becoming "interested in" a competitor company for the six months following termination, was "impermissibly wide" and therefore void.
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Beware: employers may bear responsibility for mishandled medical examinations
Various claimants v Barclays Bank PLC (High Court)
Employers may be vicariously liable for sexual assaults committed by their nominated practitioners during compulsory medical examinations, where the employer-doctor relationship can be considered sufficiently similar to employment; and where the unlawful acts are closely connected to such employment or quasi-employment.
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UK Government publishes 'Statement of Intent' for new Data Protection Bill and GDPR
The UK Government has published its proposals for a new Data Protection Bill, to replace the current Data Protection Act 1998. With the General Data Protection Regulation ("GDPR") due to take effect next year, the new Bill will, amongst other things, extend the GDPR to non-EU matters, implement domestic powers of exemption/derogation and create two new criminal offences. Employers should note that:
- the GDPR will take direct effect in the UK on 25 May 2018, and will be consolidated into national law by the proposed Repeal Bill so as to remain applicable post-Brexit;
- the new Bill will be consistent with the GDPR, but suggests a cautious stance on domestic exemptions and a desire to minimise departures from the approach taken under the existing Data Protection Act;
- derogations will be extended in specific areas, such as research, significant automated decision-making and the promised social media right to be forgotten; and
- data controllers (along with their officers and employees) who 'alter records with intent to prevent disclosure following a subject access request' may be subject to criminal proceedings and an unlimited fine, as well as those who retain personal data against the wishes of their employer, even if such data was originally obtained lawfully.
The UK government speaks of changes to ensure 'less bureaucracy' and 'simpler rules', but continuity with the existing regime (as far as is possible) and a smooth Brexit transition appears to be the key message. This may disappoint some employers who were hoping for more extensive derogations and allowances to accommodate the GDPR's more demanding regulatory requirements, particularly in relation to the processing of sensitive personal data. More detailed analysis from our Data Protection team can be found here.
Abolition of Employment Tribunal fees: stay on subsequent claims and applications lifted
Following the Supreme Court's decision in R (on the application of Unison) v Lord Chancellor, which declared the Employment Tribunal fees regime unlawful and invalid with immediate effect, the Presidents of the Employment Tribunals in England and Scotland ordered that all claims brought 'in reliance' on that judgment be stayed.
On 18 August 2017, this stay was lifted with immediate effect by a further Presidential Order. In short, this states that those considering applications for fee reimbursement, and for the reinstatement of claims which had been rejected or dismissed for non-payment of fees, should wait to make such claims in line with administrative arrangements to be announced 'shortly'. Other claims which may be being prepared in reliance on the Unison decision should be commenced in the usual way.
A copy of the latest Presidential Order can be found here, and our detailed commentary on the Unison decision can be found here.
A statutory right to paid bereavement leave?
The Parental Bereavement (Pay and Leave) Bill 2017-2019 has been introduced into the House of Commons. If pursued, this will entitle employed parents who have suffered the death of a child to statutory paid leave, in order to allow them time to grieve away from work.
There is currently no legal requirement for employers to provide paid leave for grieving parents. A period of consultation and collaboration is now underway; and the press release from the Department for Business, Energy & Industrial Strategy can be found here.
Beyond the UK
Coming soon: Frontline Nordics
Combining the insight and expertise of our employment teams in Denmark, Finland and Sweden, Frontline Nordics will put the top market trends and legal development from across the region right at your fingertips.
Useful for anyone already operating or considering setting up business in any of the Nordic jurisdictions. Sign up here to receive it.
Asia Pacific and the Gig Economy
Hong Kong-based Parter Pattie Walsh gives her thoughts on the changing nature of the workplace to the South China Morning Post. You can read the digital version here as well as some of her other contributions to the publication here.