Weekly Review of Developments 24/2/2017
Posted in : Weekly Review of Developments on 24 February 2017
Legal Island
Legal Island
A new study has found that law is the most boring profession. Oh, no it's not...
CONTENTS
1. Case Law Review
2. Law is the Most Boring Profession
3. Mental Health is a No-Go Issue
4. Pensions Developments
5. Brexit Developments
6. Employment News in the Media
7. GB Developments
8. Health and Safety Developments
9. South of the Border
10. Wardlow on the Asher’s Case
11. Friends of Legal-Island
12. Weekend Weather and Thought-Provoking Video
Case law essentials this week: John Taggart considers the Avoca Café equal pay case.
Remember: Our case law reviews are now held in our case law section on our fully-searchable employment law hub:
https://www.legal-island.com/employment-law-hub/case-law-search-page/
Highlights this week: We hope it doesn't offend any of our readers but it appears that law is the most boring profession, according to a new study. Clearly, that can't be true, at least when considering those working in the employment law arena. Just to prove how un-boring employment law is, Deliveroo is to remove a clause in its contracts that bans workers from contesting their self-employed status at employment tribunals, Tesco workers are on strike over attempts to vary contractual terms and 37,000 Argos workers are to receive back-pay of £64 each (£2.3m total), after the company failed to pay them the National Living Wage. That's what happens when, like Legal-Island, you shop around for interesting employment cases. And the Rangers FC 'big tax case' is due to be heard at the Supreme Court next month. What's boring about any of that?
We also have loads going on in GB in relation to Gender Pay Gap reporting and a new Employment Rights (Increase of Limits) Order 2017. Finally the 10th Institute of Directors' NI Women's Leadership Conference will be held on 10 March at Titanic Belfast. Men also welcome:
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1. CASE LAW REVIEW
Paulina Paczkowska and Agnieszka Anna Golygowska v Avoca Handweavers (NI) Limited [2017] (CASE REFS: 1128/15 and 1130/15)
Keywords: Equal Pay
The two female claimants worked in the Avoca Café in Belfast as barista-cum-floor staff and argued sexual discrimination resulting in unequal pay. The respondent accepted that another male employee who had been carrying out ‘like work’ was being paid more but argued that material factors other than gender were the reason for the disparity. Their defence was that the male employee had asked for a pay increase and he had received it at a very busy period when the employer was particularly keen to retain his services.
They also cited the global recession as a reason for the inability to award a comparable rate of pay. The respondent accepted that no structured pay scheme existed in the business and that any increases were at the discretion of the manager. The tribunal was satisfied that this was a case where the rebuttable presumption of the difference in pay by reason of sex arose. However, the tribunal looked closely at the reasons advanced by the respondent for the disparity and found that none stood up to analysis. The claimants succeeded in their equal pay claim.
Practical Lessons
The tribunal methodically went through each explanation advanced by the respondent but its findings of fact noted that none were satisfactory. Following the decision in Glasgow City Council v Marshall [2000] IRLR 272 HL the tribunal firstly considered whether the respondent’s explanations were ‘genuine’ but unsurprisingly found they were not in light of the facts found.
If a tribunal comes to such a conclusion it is realistically the end of any ‘material factor defence’ and in this case the respondent’s points were quite easily dismissed. The Equality Commission’s ‘Code of Practice on Equal Pay’ ought really to be considered an essential document for employers in similar situations and effectively reviewing and monitoring pay practices could avoid such claims. In this case a proper assessment of the work the claimants were doing in comparison with the male comparator and appropriate consultation should have seen this matter dealt with at an early stage.
This case review was written by John Taggart BL. NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/
If you have any queries or wish to comment on the reports please feel free to contact John at: jtaggart11@qub.ac.uk
John Taggart LL.B, CPLS, BL:
After practising at the Bar of Northern Ireland for two years John joined 33 Bedford Row, London as a third six pupil in January 2016. He writes a weekly review of employment case reports for Legal-Island and is also a contributor to various legal blogs on a range of topics. John has also taught criminal law and tort law at Queen’s University, Belfast and is currently a visiting lecturer at City University, London. He is currently on secondment from chambers to the Nursing and Midwifery Council as a fitness to practise lawyer.
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2. LAW IS THE MOST BORING PROFESSION
Though most staff would probably never admit this to their boss, a recent study by Emolument.com has revealed the professions where employees feel least engaged by their work.
Law professionals are the most disengaged, with eight out of ten claiming they feel bored at work – the 1,300 person survey by the salary benchmarking site found. The repetitive nature of a Junior Lawyer’s working week, which involves researching cases and previous rulings, is cited as a reason why 81% of lawyers felt disinterested at work. (They clearly haven't surveyed employment lawyers)
Project managers come a close second in the boredom stakes, followed by staff who offer support functions, workers in finance control and employees in Consulting & Accountancy. More from HR Grapevine:
https://www.hrgrapevine.com/content/article/news-2017-02-17-14-most-boring-professions
*** It can't be that boring. The appointment of three judges to Northern Ireland’s Court of Appeal has been approved by Her Majesty The Queen. Mr Justice Stephens, Mr Justice Deeny and Mr Justice Treacy will be sworn into office as Lord Justices of Appeal later this year at the Royal Courts of Justice. More from Irishlegal.com:
http://www.irishlegal.com/6640/court-of-appeal-judges-approved-for-appointment/
*** Still with jobs and why people do them, public sector staff who move from permanent roles to agency work mainly do so due to concerns over insufficient resources and unmanageable workloads rather than in an effort to increase pay, a review has found.
Following increasing concern about the cost of agency workers to the public sector, particularly in the NHS and schools, the National Institute of Economic and Social Research was commissioned by the Office of Manpower Economics to consider why staff are moving to agency posts.
The report concluded that that staff were being ‘pushed’ into agency work by concerns about deteriorating job quality, rather than ‘pulled’ by the opportunity to earn more. More from publicfinance.co.uk:
*** But what of careers and younger workers? Millennial workers’ reluctance to job-hop is having an “unprecedented” negative effect on their pay and career progression, according to new research from the Resolution Foundation.
Only a quarter (25 per cent) of workers born in the mid-1980s moved jobs from year-to-year when they were in their mid-20s, found the report – half the rate of those who were born a decade earlier in the mid-1970s.
The Study, Work, Progress, Repeat? report found that each generation of workers – from those born in the early 1950s to the late 1970s – earned more than the generation before them during their 20s. But workers born during the early 1980s earned around £40 a week less around the age of 30 than those born 10 years earlier. It also found that people born in the late 1980s currently earn no more than those born 15 years earlier were earning at the same age.
More from the CIPD:
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3. MENTAL HEALTH IS A NO-GO ISSUE
Fewer than 10 per cent of employees who have experienced mental health issues feel able to talk to their manager or supervisor about it, according to research released this week by Legal and General.
The survey of 2,000 full-time employees and 200 managing directors or HR managers found that 40 per cent of employees had experienced depression, while 22 per cent were dealing with anger and 25 per cent with unacceptably high levels of pressure.
More from cityam.com:
http://www.cityam.com/259389/fewer-than-1-10-uk-employees-would-discuss-mental-health
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4. PENSIONS DEVELOPMENTS
* Pension Schemes Act 2015 (Judicial Pensions) (Consequential Provision) Regulations (Northern Ireland) 2017 came into operation on 23rd February 2017.
These Regulations make a consequential amendment to section 31 of the Public Service Pensions Act (Northern Ireland) 2014 (“the 2014 Act”) following the enactment of section 18A of the Judicial Pensions and Retirement Act 1993 (“the 1993 Act”). Section 18A of the 1993 Act enables the creation of a pension scheme for certain fee-paid judges including, in particular, making provision corresponding or similar to that made by or under Part 1 or section 20 of, or Schedule 2 or 2A to, the 1993 Act for salaried judges. Section 18A of the 1993 Act was inserted by section 78 of the Pension Schemes Act 2015. This amendment will ensure that the relationship between the 2014 Act and a scheme created under section 18A of the 1993 Act will be the same as the relationship between the 2014 Act and other judicial pension schemes established by or under the 1993 Act.
http://www.legislation.gov.uk/nisr/2017/40/contents/made
* The Pension Protection Fund and Occupational Pension Schemes (Levy Ceiling and Compensation Cap) Order (Northern Ireland) 2017 comes into operation on 31 March and 1 April.
This Order, which corresponds to provisions of an Order (S.I. 2017/50) made by the Secretary of State for Work and Pensions under section 178 of, and paragraphs 26(7) and 27(2) and (3) of Schedule 7 to, the Pensions Act 2004 (“the Act”), specifies the levy ceiling and the amount of the compensation cap for use in relation to the Pension Protection Fund in the financial year beginning on 1st April 2017.
The Board of the Pension Protection Fund (“the Board”) is established by section 107 of the Act to provide compensation for members of certain occupational pension schemes in the event of the insolvency of the scheme’s sponsoring employer and the scheme is underfunded at a certain level.
Article 158 of the Pensions (Northern Ireland) Order 2005 (“the 2005 Order”) provides that the Board must impose pension protection levies for each financial year. Article 160 of the 2005 Order provides for the amount to be raised by the pension protection levies, subject to an annual ceiling.
Article 2 of this Order specifies that, for the purposes of Article 160 of the 2005 Order, the levy ceiling for the financial year beginning on 1st April 2017 is £1,007,249,095. More:
http://www.legislation.gov.uk/nisr/2017/39/contents/made
*** Defined Benefit Schemes Green Paper
A new government Green Paper draws together a number of suggestions from commentators (including the Work and Pensions Select Committee) on how the system could be changed to potentially deliver better outcomes. It seeks to identify where there may be particular problems or issues in order to start an informed discussion on the best way to improve the management and oversight of the risks inherent in providing DB pensions.
One suggestion is to tie pension increases to the consumer price index, rather than the more generous retail price index, which could save companies £90 billion p.a. More:
The CIPD summary is handier for those who want a quick review:
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5. BREXIT DEVELOPMENTS
* Show Us the Money
The UK will be in a strong negotiating position to claim a share of EU assets accrued during the country’s membership of the economic bloc as part of Brexit negotiations, according to CIPFA chief executive Rob Whiteman.
Welcoming reports that the government was preparing to demand a share of European Union assets in an attempt to cut the contributions that the UK would need to make to cover EU liabilities, Whiteman said EU negotiators must remember that there are two sides to a balance sheet.
More from publicfinance.co.uk:
http://www.publicfinance.co.uk/news/2017/02/uk-could-claim-share-eu-assets-brexit-talks-says-cipfa
* Bet on Scotland to Leave
William Hill has become the first bookmakers to back Yes as the likely outcome of a second Scottish independence referendum. Read more from The Scotsman: http://www.scotsman.com/news/politics/in-full/william-hill-first-bookies-to-back-yes-vote-for-indyref2-1-4370963
* Border Blockade
Campaigners have held up traffic on a road between Northern Ireland and the Republic of Ireland as part of a protest against possible border checks post-Brexit. More from the BBC:
http://www.bbc.co.uk/news/uk-northern-ireland-39016582
An All Island Civic Dialogue on Brexit was held at Dublin Castle on 17th February:
* Tony Blair
Former PM Tony Blair is not happy with the Brexit result and thinks it can be overturned. Recorded coverage of the speech and Q&A session at Open Europe in central London on the EU referendum and the UK's plans for withdrawal from the EU is available on the BBC:
http://www.bbc.co.uk/programmes/b08gcnhp
The Irish Times reckons Tony Blair couldn’t help the Remain campaign but he could help steer Brexit:
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6. EMPLOYMENT NEWS IN THE MEDIA
* Courier firm Deliveroo is to remove a clause in its contracts that bans workers from contesting their self-employed status at employment tribunals, after its legality was questioned by a cross-party group of MPs. While being questioned by members of the work and pensions select committee this week, Deliveroo’s managing director, Dan Warne, said the company needed to “revise the contract”. More from the CIPD:
* The Guardian reports that Amazon, Deliveroo and Uber have admitted to the House of Commons work and pensions committee that their businesses would remain viable if they were no longer allowed to rely on self-employed workers who do not receive sick pay, pensions or a guaranteed minimum wage.
* A heterosexual couple have lost their Court of Appeal battle to have a civil partnership instead of a marriage. Rebecca Steinfeld and Charles Keidan, from London, challenged a ruling that said they did not meet the legal requirement of being the same sex. The judges said there was a potential human rights breach but the government should have more time to decide on the future of civil partnerships. More from the BBC:
http://www.bbc.co.uk/news/uk-39039146
* A Scottish beer making firm will soon give workers with new puppies and rescue dogs paid leave — dubbed “paw-ternity” leave — for the first time ever in the US, according to a report. BrewDog, which is set to open Columbus, Ohio, this spring, already offers the drool-inducing deal to 1,000 employees across the world, USA Today reported.
http://nypost.com/2017/02/17/brewery-will-be-the-first-us-firm-to-offer-paw-ternity-leave/
* As many as 37,000 Argos workers are to receive back-pay of £64 each (£2.3m total), after the company failed to pay them the National Living Wage (NLW). Sainsbury's, which owns the company, admitted that staff had not been paid for attending briefings before their shifts started. They were also required to undergo security searches after clocking off. More from the BBC:
http://www.bbc.co.uk/news/business-39002421
* Canadian law firm Nelligan O'Brien Payne LLP says it is representing a class-action lawsuit of more than 300 people who were told by BlackBerry their jobs were being transferred to Ford Canada, a BlackBerry business partner. They were tricked into quitting their jobs and lost seniority, according to an article in The Register:
https://www.theregister.co.uk/2017/02/17/blackberry_sued_over_jobtransfer_shenanigans/
* A former employee of Tiffany & Co. says the jewellery maker pushed her out of her job after she had her breasts and ovaries removed to avoid getting cancer. Read more from the Daily Mail:
* The Rangers FC EBT ‘big tax’ case is due to kick off in Supreme Court, reports CCH Daily. The case is scheduled for a two-day hearing on 15 March and 16 March, in front of a panel of five judges: Lord Neuberger, Lady Hale, Lord Reed, Lord Carnwath, and Lord Hodge. [RFC 2012 Plc (in liquidation) (formerly The Rangers Football Club Plc) (Appellant) v Advocate General for Scotland (Respondent) (Scotland) Case ID: UKSC 2016/0073].
https://www.cchdaily.co.uk/rangers-ebt-big-tax-case-kick-supreme-court
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7. GB DEVELOPMENTS
Employment law is a devolved power in Northern Ireland. The items in this section apply throughout GB only (Scotland and England & Wales) unless we specify they apply to NI.
* The Employment Rights (Increase of Limits) Order 2017
The Employment Rights (Increase of Limits) Order 2017 shall come into force in GB on 6th April 2017.
Key Changes:
- Maximum Basic Award for 'Ordinary' Unfair Dismissal will increase from £14,370 to £14,
- Maximum Compensatory Award for 'Ordinary' Unfair Dismissal will increase from £78,962 to £80,541
- Maximum Amount when calculating a 'week's pay' for redundancy purposes etc will increase from £479 to £489
- Guarantee Payment During Lay-Off will increase from £26.00 to £27.00
http://www.legislation.gov.uk/uksi/2017/175/contents/made
* The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017
The above Regulations apply in GB from 6th April 2017. The Regulations will require employers with at least 250 employees to publish annual information to show whether there is a difference in the average pay of their male and female employees.
A relevant employer must publish, for 2017 and each subsequent year, the following information:
(a)the difference between the mean hourly rate of pay of male full-pay relevant employees and that of female full-pay relevant employees (see regulation 8);
(b)the difference between the median hourly rate of pay of male full-pay relevant employees and that of female full-pay relevant employees (see regulation 9);
(c)the difference between the mean bonus pay paid to male relevant employees and that paid to female relevant employees (see regulation 10);
(d)the difference between the median bonus pay paid to male relevant employees and that paid to female relevant employees (see regulation 11);
(e)the proportions of male and female relevant employees who were paid bonus pay (see regulation 12); and
(f)the proportions of male and female full-pay relevant employees in the lower, lower middle, upper middle and upper quartile pay bands (see regulation 13).
(2) The relevant employer must publish the information required above within the period of 12 months beginning with the snapshot date.
The Regulations set out definitions and specific requirements. More:
http://www.legislation.gov.uk/uksi/2017/172/contents/made
* Apprenticeship Levy
HMRC has published an internal manual: Apprenticeship Levy Manual
It covers pretty much everything employers need to know about gathering and spending the Levy in GB:
https://www.gov.uk/hmrc-internal-manuals/apprenticeship-levy
The Levy applies to employers with a pay bill in excess of £3m p.a. from 6th April in the private sector in GB. The Levy should apply in NI from June 2017, subject to Stormont approval.
* Trade Union Ballots and Elections
The Department for Business, Energy & Industrial Strategy in GB has issues a call for applications from organisations to act as independent scrutineers for trade union ballots and elections.
https://www.gov.uk/government/publications/trade-union-ballots-apply-to-become-a-scrutineer
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8. HEALTH AND SAFETY DEVELOPMENTS
* Asbestos seminar - 22 March 2017
HSENI is holding an Asbestos seminar on 22 March 2017 at the Hilton Hotel, Templepatrick:
https://www.hseni.gov.uk/publications/asbestos-seminar-22-march-2017
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9. SOUTH OF THE BORDER
This section is brought to you by Ciara Fulton, Partner and Head of Employment (Belfast) at DWF (Northern Ireland) LLP. Ciara is dual-qualified and practices law throughout the island of Ireland. Find out more about Ciara:
https://www.dwf.law/people/c/ciara-fulton/
* Socio-Economic Discrimination
The Irish Human Rights and Equality Commission has supported the findings of the Mulvey Report on measures to support the long-term economic and social regeneration of Dublin’s North East Inner City.
The Commission believes that employment discrimination against people living in areas facing socio-economic challenges, should now be considered for prohibition in law under the Employment Equality Acts (EEA). This approach would allow people seeking employment, to ensure that their applications are assessed on their skills, qualifications and ability and rather than on social background or postal address.
The Mulvey Report, in its findings has highlighted that unemployment levels in Dublin’s North East Inner City sit at double and triple the national average, requiring a significant change in approach, and has also highlighted that local jobs don’t necessarily mean local employment, as jobs are filled by residents of more prosperous areas. This same situation is found not only in Dublin’s North Inner City, but in areas of disadvantage around the country.
More:
* An Garda Síochána and Industrial Action
Deputy Jim O'Callaghan recently asked the Tánaiste and Minister for Justice and Equality her plans to allow Garda associations access to the industrial relations mechanisms of the State; and if new restrictions on members of An Garda Síochána going on strike or taking other forms of industrial action are to be brought forward.
Deputy Frances Fitzgerald said: "The Government has made it clear that it is committed to introducing legislative change to give Garda associations the right of access to the Workplace Relations Commission and the Labour Court... In December last, I went to Government and got approval for drafting the heads of a Bill to achieve this objective. Many different issues fall to be considered in this context. These include the status of the Garda associations established under the Garda Síochána Acts and the related question of constraints on members taking industrial action... To assist in the consideration of these, we have a new working group, which is chaired by Mr. John Murphy, the recently retired Secretary General of the Department of Jobs, Enterprise and Innovation." More:
http://www.justice.ie/en/JELR/Pages/PQ-16-02-2017-10
* Tesco Strike
The Tesco strike in the Republic of Ireland has turned increasingly bitter as the company claimed that an "increasing number" of staff members were returning to work. The industrial action is set to escalate after proposed talks fell apart on February 17 and the Mandate trade union says that it will continue to ballot more outlets this coming Monday and Tuesday. So far 18 out of 24 stores recently balloted have rejected strike action. However 16 stores are currently on strike, and according to Mandate 1,600 employees in total are on the picket line. More from the Irish Independent:
http://www.independent.ie/irish-news/tesco-strike-set-to-escalate-further-35478158.html
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10. WARDLOW ON THE ASHER'S CASE
Just a few month after the Court of Appeal handed down its judgment in the so called Asher’s Bakery case Legal-Island Chairman, Barry Phillips, interviews Michael Wardlow, Chief Commissioner of the Equality Commission for his views on the aftermath of the decision and where it leaves us in terms of LGBT rights in Northern Ireland. It’s a fascinating interview.
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11. FRIENDS OF LEGAL-ISLAND
* 10th Women’s Leadership Conference - 10th March
The 10th Institute of Directors' NI Women's Leadership Conference will be held on 10 March at Titanic Belfast.
Speakers include:
- Vasiliki Petrou, Exe Vice President of Unilever Prestige
- Louise Guido, CEO of ChangeCorp
- host Susan Hayes Culleton, 'The Positive Economist'
Men are welcome as well as women!
Information can be found at:
* Cleaver Fulton Rankin
Cleaver Fulton Rankin has announced the appointment of Hilary Griffith to head its corporate team. Hilary is a Queen’s law graduate and qualified with distinction in 1998. She is accomplished lawyer with almost 20 years’ experience, having worked as a corporate partner in one of Northern Ireland’s international law firms as well as spending a period heading up Queen’s University’s commercial legal team. More from Irishlegal.com:
http://www.irishlegal.com/6676/hilary-griffith-to-head-cleaver-fulton-rankins-corporate-team/
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12. WEEKEND WEATHER AND THOUGHT-PROVOKING VIDEO
Still windy with some light rain on Friday, windier still on Saturday before heavier rain appears on Sunday, as Storm Doris returns for another day. Maximum daytime temperatures of 6-11°C.
Go to the BBCNI for local information:
This week's thought-provoking video is about news. Something is very wrong with the news industry. Trust in the media has hit an all-time low; we're inundated with sensationalist stories, and consistent, high-quality reporting is scarce, says journalist Lara Setrakian. She shares three ways we can fix the news to better inform all of us about the complex issues of our time. (8:37)
http://www.ted.com/talks/lara_setrakian_3_ways_to_fix_a_broken_news_industry
* And don't forget the A&L Goodbody 'Back to Basics' series of videos on the Legal-Island website if you want a quick check of NI employment rights. As well as a short video from the team, there's a transcript for reference purposes.
https://www.legal-island.com/regular-features/back-to-basics-video/
This article is correct at 24/02/2017Disclaimer:
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.
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