Frontline UK Employment Law Update October 2018
Written By
Welcome to the October 2018 edition of Frontline UK.
This month, our UK immigration team (headed by Yuichi Sekine) published an update on the recent Migration Advisory Committee (MAC) report, which sketched the outline of a future migration landscape for EU workers and provided some helpful indications for UK employers seeking to proactively consider plans for their migrant workforce in a post-Brexit landscape.
Our case alert feature details a decision against Morrisons by The Court of Appeal this week, who dismissed the supermarket chain's appeal in the case of Various Claimants -v- Wm Morrison Supermarkets PLC, where Morrisons had been held vicariously liable for the serious data breach caused by a former employee. We look at the decision and what it means for employers.
In our case update, we consider a recent decision on the status of football referees, an apparent relaxation in the causation test applicable to disability discrimination claims and a note of caution for employers when interpreting "notice" given by their employees.
Our legal updates cover developments in the field of immigration, such as a planned increase in the Immigration Health Surcharge applicable to migrant workers, and broader employment laws, including Royal Assent for the Parental Bereavement (Leave and Pay) Act 2018.
EU migration post-Brexit: recommendations of the Migration Advisory Committee
In September 2018, employers and EU citizens welcomed the final report from the Migration Advisory Committee (MAC), which sketched the outline of a future migration landscape for EU workers.
Set against a backdrop of speculation and uncertainty, the report is a valuable indicator of post-Brexit policy for employers and workers alike. Although the highly anticipated report is not binding on the government’s plans, it is considered to carry persuasive weight.
Case Alert - Morrisons' Vicarious Liability for Data Breach Upheld
The Court of Appeal ("CA") has dismissed Morrisons' appeal against a High Court finding that it was vicariously liable for a large data breach caused by a rogue employee.
This is a significant decision for employers, highlighting that IT systems and associated security measures need to be both outward- and inward-gazing; the internal threat from rogue employees, particularly those with access to HR data, needs to be carefully managed.
For our full analysis of this decision, please see here.
Case Summary
Red card for HMRC over referees' employment status
Professional Game Match Officials Limited v HMRC (First-tier Tribunal)
The first-tier tax tribunal has held that a large group of professional football referees should be classified as self-employed for tax purposes, rather than employees of their central organising body.
EAT loosens causation test for disability discrimination claims
Sheikholeslami v University of Edinburgh (Employment Appeal Tribunal)
The EAT has confirmed that tribunals should not apply a strict causation test when considering whether an individual has suffered discrimination on the basis of unfavourable treatment because of something arising in consequence of their disability. Rather than being the sole cause of the ‘something arising’, a disability need only constitute a loose element of the chain of causation to satisfy the relevant legal test.
Written notice not effective to terminate employment in internal transfer
East Kent Hospitals University NHS Foundation Trust v Levy (Employment Appeal Tribunal)
The EAT has confirmed that an individual who gave her employer "one months' notice" had not resigned her employment but instead – judged objectively – had signalled her intention to initiate an internal role transfer pursuant to a conditional offer.
Legal Updates
Health charge for non-EU migrants likely to increase in December 2018
Migrants from outside the EEA, applying for a visa exceeding six months, are required to pay the Immigration Health Surcharge (IHS) to receive access to NHS services on the same terms as British citizens. Proposals laid before Parliament on 11 October would increase the annual IHS fee from £200 to £400, with effect from December 2018. Those on a student or youth mobility visa will be subject to a discounted rate of £300.
The charge is not applicable to those seeking Indefinite Leave to Remain or British Citizenship, or those who are part of certain vulnerable groups, such as slavery victims and asylum seekers. Short-term migrants will continue to be charged for secondary care NHS treatment at the point of access.
Employers should remain vigilant of rising costs for migrant workers. Further information can be found in the press release from the Home Office here.
Home Office commissions review of Shortage Occupation List
The Shortage Occupation List (SOL) relieves certain financial and administrative burdens of immigration sponsorship on employers who are recruiting for certain high-skilled jobs that are considered to suffer from shortages within the domestic market.
On 11 October, the Home Office requested that the Migration Advisory Committee undertake a comprehensive review of the roles included on the SOL, with its findings to be published in Spring 2019. In its September report on EU migration post-Brexit, the Committee suggested that the SOL be extended to medium-skilled occupations, and highlighted that the needs of the UK labour market are likely to shift after March 2019. We anticipate these initial views to be reflected in recommendations for the range of jobs on the SOL to be widened, subject to corresponding evidence from the review.
Those who rely or expect to rely on the Shortage Occupation List should be aware that the remit and operation of the SOL is likely to change, after the publication of the MAC's report in Spring.
The current Shortage Occupation List can be found here, and the Home Office's letter to the Migration Advisory Committee can be found here.
Low Pay Commission reviews annual National Minimum Wage compliance
The government's Low Pay Commission has published its independent report on underpayment of the National Minimum Wage (NMW) during 2017/18. The Commission found that over 200,000 workers were underpaid by a cumulative total of £15.6m this year. It attributes this, in part, to unintentional underpayments, where many employers suffer from a lack of information about their responsibilities or a lack of ability to accurately calculate hourly rates.
The report confirmed that HMRC funding for enforcement of NMW has been bolstered, facilitating their investigation and intervention powers. This is reflected in the value of penalties issued, which has increased from just under £4m in 2016/17 to over £14m in 2017/18.
As HMRC strengthens its enforcement efforts, employers would be well-advised to review and audit their minimum wage compliance on a regular basis, to avoid miscalculations or investigatory activity and to be in a position to respond to should an investigation be undertaken.
The report can be accessed here.
Royal Assent for the Parental Bereavement (Leave and Pay) Act 2018
The Parental Bereavement (Leave and Pay) Act 2018 received Royal Assent on 13 September 2018. This new piece of legislation purports to give employed parents who have lost a child under the age of 18, or who suffer a stillbirth after 24 weeks of pregnancy, a statutory right to two weeks of leave (to be taken within 56 days of the death of the child) as well as a right to claim for parental bereavement pay, subject to certain eligibility conditions.
The relevant rights are likely to come into force in 2020, once the government has enacted implementing regulations. A full copy of the Act can be found here.
