Acas has published its latest statistics on early conciliation take-up and success rates covering the period April to December 2018.  Between April and December 2018, the number of notifications received by Acas was 98,143, an increase from 77,167 during the same period in the previous year.  The figures also show an increase in successful conciliation of claims compared to the previous year, with 64% of disputes not progressing to a tribunal claim, compared with 58% in 2017.

If you require further information, follow the link below:

http://www.acas.org.uk/index.aspx?articleid=6688

To assist employers and employees in understanding the potential impact that Brexit may have in their workplace, Acas has published a new guidance outlining possible implications.  The guidance gives advice regarding the steps employers and employees may want to take and consider before the UK leaves the European Union. 

The new guidance explains the potential changes to employment law stemming from the UK leaving the EU, and provides links to the government technical guidance. In addition, it explains the impact of Brexit on EU citizens working in the UK, provides links to government materials on their rights and goes on to offer advice to employers when talking to their employees about how they may be impacted by the UK’s exit.

The guidance confirms that tribunal and court decisions appealed to the European Court of Human Rights will not be impacted by Brexit.

For further information, follow the link below:

http://www.acas.org.uk/index.aspx?articleid=6686&utm_medium=email&utm_campaign=NTL%20April%202019&utm_content=NTL%20April%202019+Version+A+CID_9bdb63d0ec73d4c09861fca9eb6b3a82&utm_source=Acas%20National%20Email%20Marketing%20Live&utm_term=View%20Acas%20guidance%20for%20employers%20and%20employees

An employment tribunal has ruled that plumber Gary Smith, whose status as a worker was confirmed by the Supreme Court in 2018 is not entitled to his alleged £74,000 arrears of holiday pay as he did not bring his claim in time.  

The written decision has not yet been published but we will report further on the issues when more information is available.  We understand that Mr Smith will appeal.  A separate disability discrimination claim is to be heard in June.

However, this ruling highlights the importance of bringing your claim within the appropriate time limit and the Tribunals may take a strict view as to awarding compensation to employees if their claim is out of time.

To help workers understand their rights and to ensure that employers understand their obligations in relation to holiday pay, on 12 March 2019, the government launched a campaign to clarify the position.

The campaign will provide accessible information in the form of video on-demand, Spotify advertising and digital website and social media advertising. These efforts will be complemented by adverts in train stations and on streets.

One year on after GDPR came into force on the 25 May 2018, below is an overview of the key statistics:

• In June 2018, 1,792 breaches were reported to the ICO. This is compared to 657 in May 2018, and 367 in April 2018;
• In 2018, 103 monetary penalties were raised for failing to pay the ICO’s registration fee;
• A class action was successfully brought by 5,518 claimants against Morrisons supermarket under the Data Protection Directive (the predecessor of GDPR). The Supreme Court have allowed Morrisons to appeal against the Court of Appeal’s decision, however, subject to the appeal, UK employers are exposed to vicarious liability for breach of GDPR by employees;
• No GDPR fines have been issued so far by the ICO, nonetheless, 12 EU member states’ data protection authorities (DPAs) have issued fines under the GDPR;
• Ordered by the French CNIL on Google in January 2019, the largest fine in data protection history is in the sum of €50 million as a result of not being transparent and complying with information duties, and for failing to have a legal basis for processing personalised advertising.

Conservative ministers are no longer ‘naming and shaming’ companies that do not pay their workers the legally required national minimum wage, according to Labour MP Stephanie Peacock. Companies have not been ‘named and shamed’ since 6 July 2018, however in April 2019, the Low Pay Commission asked that ‘naming and shaming’ be resumed. The Commission asserted that over 400,000 workers were illegally underpaid by their employers in 2018.

Recent research into the effect of the menopause has shown that it generally affects women between the ages of 50 to 64. The time off work due to symptoms caused by menopause results in the loss of 14 million working days annually. Women suffering from menopausal symptoms take time off work and/or work outside of their working hours to make up for the working time lost.

Currently, claims for unfair dismissal, direct sex discrimination and disability related discrimination have been brought. There is scope that possible future claims may be brought for indirect sex and disability discrimination, sex, disability and age-related harassment, victimisation, and failure to make reasonable adjustments. These claims may be costly, lengthy and damaging to an employer’s reputation.

Employers should provide training, encourage open conversations, and elect champions and ambassadors in the workplace to reduce the pressure for women suffering from menopausal symptoms.

The Equality and Human Rights Commission (EHRC) is now providing a telephone helpline to professional organisations that provide advice in relation to human rights or discrimination to individuals. Members of the public cannot use the helpline, however, they can use the Equality Advisory and Support Service.

There is no doubt that Employers and Employees often ponder who is responsible for bearing the cost of a DBS check.  Has it ever occurred in your workplace?

The Government indicates that the fee for a Disclosure and Barring Service Bureau check (known as a DBS check and formerly known as a CRB check) is the liability of the individual upon whom that check is being undertaken.

In this respect, any deduction made from the worker’s pay to pay for the DBS check on his or her behalf will NOT therefore reduce national minimum wage pay since it is paid over by the employer to a third party to meet the liability of the worker.

As a Disclosure and Barring Service check is a requirement for securing the employment and, unlike an expense, which does not arise from performing the job itself, the cost of a DBS check is NOT considered an expense for the national minimum wage purposes.

The employee can make a payment to the employer to cover the cost of the DBS and if that is the case, the amount of the payment will not need to be reduced from the employee’s national minimum wage pay.

However, if the employer imposes an administrative charge for handling the application, then the amount of the administrative charge will reduce the worker’s national minimum wage pay.

If the worker is not charged for a Disclosure and Barring Service check but the employer pays the cost directly to a third party on behalf of the worker and does not seek to recover the cost, the amount paid does not count towards national minimum wage pay as it is not a payment being made to the worker.

If you require any clarity on any of the above aspects or concepts, please do not hesitate to contact our Employment team.

Following an unsuccessful appeal made by Morrisons in October 2018 against the High Court’s decision of liability for data breach claims brought by 5,518 employees, the Supreme Court have allowed Morrisons to make an appeal against the Court of Appeal’s decision.

‘Off-payroll’ refers to individuals that work through companies and must pay taxes, similar to those which other employees must pay.

From 6 April 2020, the rules relating to off-payroll workers are changing.

HMRC have prepared guidance setting out how an institution can plan ahead of the change. Click here to view the guidance – https://www.gov.uk/guidance/prepare-for-changes-to-the-off-payroll-working-rules-ir35. 

At a research institute’s Christmas party where alcohol was being served, a visiting scientist at the institute tried to pick up an employee off the dancefloor, however this was unsuccessful and the employee fell to the floor. As a result, the employee suffered from a severe injury to her back. The injured employee brought a claim against the institute for negligence, however this was rejected by the Court.

The employer had undertaken a risk assessment prior to the party, and the Court decided that this was sufficient. The duty of care does not extend to the employer having to risk assess whether an unfortunate event following the consumption of alcohol would occur on the dancefloor.

The Court determined that the employer was not vicariously liable for the actions of the visiting scientist, and the event at the party was not connected with the research activities required of the visiting scientist.

The High Court has recently decided that officers of a limited company can be personally liable for its breaches of an employment contract.

In a claim for damages for exploitative labour, the claimants, who worked exceedingly long hours for less than the statutory minimum wages, brought an action for unpaid wages and unlawful deductions from their income. The claimants were also frequently not paid the sums that were due to them from their employer and payments were also often withheld. Additionally, there was no attempt by the employer to pay the claimants holiday pay or overtime.

Generally, an officer of a company is not personally liable for a breach of contract by that company if the officer is acting bona fide within the scope of his/her authority on behalf of a company.

However, in this particular case, the focus by the court was on the officers’ conduct and intention in relation to their duties towards the company, not towards the third parties (the employees). Mr Justice Lane concluded in this case that the officers of the company – a director and a company secretary – were jointly and severally liable to the claimants for inducing the breaches of contract by the company, as they did not honestly believe that they were paying the minimum wage, overtime and holiday pay nor that they were entitled to withhold payments.

The decision of Mr Justice Lane is an important decision due to its wide-reaching implications for officers of a company. Legal decisions that are made by judges in higher courts, such as the High Court, remain as a precedent, so the decisions made by lower or equal courts in future need to follow the earlier decision made in the higher courts.

This is a binding decision, however it could be subject to an appeal in a higher court.

In a recently published study by the Scottish Centre for Crime and Justice, the criminal record “tick box” commonly found on job applications was found to be redundant and discouraging to job seekers. Dr Beth Weaver of Strathclyde University carried out the study and has suggested that the criminal record declarations is not symptomatic of an applicants possibility of reoffending. Furthermore, the study illustrated the fact that many applicants with previous convictions are being disregarded without any consideration due to their conviction and more worryingly their positive attributes are being completely overshadowed by their past. Roughly 11 million people in the UK have a criminal record and the research shows 75% of employers admit to discriminating against those who do.

More positively, Virgin Trains and the Civil Service are among employers who have banned the criminal record declaration on job applications. Virgin have commented “there are better ways to talk to people about their offending background rather than just simply putting them off with a ticked box exercise”.