Weekly Review of Developments 24/11/2018

Posted in : Weekly Review of Developments on 24 November 2017
Legal-Island
Legal-Island

Dubbed the biggest shopping day of the calendar year, Black Friday is finally here! If you fancy bagging a bargain, Legal-Island are offering a 30% discount on all eLearning modules if confirmed before the 30th November! If you wish to avail of this fantastic offer please visit the eLearning section of our website (N.B. Training must commence before February 2018...)

CONTENTS

1. Case Law Reviews
2. Budget 2017
3. Brexit Update
4. Data Protection Update
5. National Living Wage and National Minimum Wage Rates
6. A Solicitor’s Guide to Drafting Disciplinary Allegations - Q&A
7. Employment News in the Media
8. GB Developments
9. South of the Border
10. Friends of Legal-Island
11. Weekend Weather and Thought-Provoking Video

Case law essentials this week: The Employment Appeal Tribunal in England and Wales has upheld an Employment Tribunal determination that Uber drivers are ‘workers’ rather than self-employed contractors for the purposes of UK employment rights, working time, and minimum wage legislation; and we review a recent case of the NI industrial tribunal regarding a failure to trigger a ‘lay off’ period which was contained in an employee’s contract resulting in an award for the failure to pay his wages in lieu of notice and for unpaid wages.

Remember: Our case law reviews are now held in our case law section on our fully-searchable new employment law hub website:
https://www.legal-island.com/case-law-landing-page/ 

Highlights this week: It's budget time! The budget is big news this week as Chancellor Philip Hammond announced plans to build an economy fit for the future for the next generation, while many have criticised it for failing to address the squeeze on household incomes.

We have an extensive Brexit update as MPs vote against retaining the EU Charter of Fundamental Rights in UK Law after Brexit; Backbench Labour MPs react angrily to their leadership helping to block a bid to keep the UK inside the EU single market and customs union; and Lisa Bryson, Principal Associate of Eversheds-Sutherland, answers complex questions regarding employees and immigration post-Brexit, providing valuable information to those affected by the cessation of the free movement of people.

Also, the Northern Ireland Talent Development & Retention Forum, set up by Vibrant Talent Development to create a supportive hub in NI where people can come together to learn from each other and problem solve in the areas of talent attraction, acquisition, development and retention, invites you to attend an upcoming event entitled, ‘Equality, Diversity & Inclusion’ featuring guest speakers Barry Phillips (CEO of Legal Island & Founder of the NI Equality & Diversity Awards) and Eileen Chan-Hu (CEO of CRAICNI & Equality Commissioner) on December 11th in the Grand Opera House. See our 'Friends' section to find out more.

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1. Case Law Reviews

Uber B.V. and Others v Mr Y Aslam and Others [2017] UKEAT/0056/17/DA

Keywords: Employment status; Workers v Self-Employed; Employment Rights; Contractual Documentation; Reality of Situation

The claimants, current and former drivers of the ride-hailing app, Uber, brought various claims in the Employment Tribunal which required them to be “workers” for the purposes of the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. The Tribunal ruled James Farrar and Yaseen Aslam were workers for the purposes of the legislation, meaning they were entitled to holiday pay, sick pay and the national living wage, among other protections.

Uber appealed the decision arguing the Tribunal had erred in law, made a number of inconsistent and perverse findings of fact and failed to take into account relevant matters relied on by Uber.

Rejecting these arguments, the EAT upheld the Tribunal’s decision, confirming that when the Uber app was switched on, when drivers were within the territory in which they were authorised to work, and were able and willing to accept assignments, they were deemed to be workers.

The EAT commented on certain aspects of the relationship, particularly the obligation on drivers to accept at least 80% of trip requests, the fee imposed for cancelling a trip once accepted, the penalties imposed for failing to use the Uber-GPS route and the policy regarding financial loss. Uber alleged any actions indicative of worker status were merely required for the regulatory framework and that it was simply acting as an agent between the drivers and passengers.

Applying Autoclenz v Belcher, the EAT held “the reality of the situation was that drivers were incorporated into the Uber business of providing transportation services, subject to arrangements and controls that pointed away from their working in business on their own account in a direct contractual relationship with the passenger each time they accepted a trip.”

Assessing the true nature of the relationship, the EAT rejected the label of agency used in the written contractual documentation. The Tribunal had due regard to agency law, yet considering the factual arrangement between the parties, it rejected the argument that Uber was simply acting as the drivers’ agent.

Practical Lessons

The case highlights the need for rigorous contracts to be put in place and reaffirms the willingness of the tribunals to look behind the written contractual documentation to the reality of the situation. The arrangements in place “did not provide the complete picture,” emphasised an inequality of bargaining power and did not reflect the reality. In all likelihood Uber will seek to appeal the decision, and may wish to advance the appeal to the Supreme Court to be heard at a simultaneous time as the Pimlico Plumbers case.
https://assets.publishing.service.gov.uk/media/5a046b06e5274a0ee5a1f171/Uber_B.V._and_Others_v_Mr_Y_Aslam_and_Others_UKEAT_0056_17_DA.pdf

Radoslaw Tabor v Crawford Cleanwell Limited (CASE REF: 1813/17)

Keywords: Lay-Off; Short Term Working; Contract of Employment

The claimant was employed by the respondent as a cleaner at one designated site in Belfast.  It was not disputed that he had been provided with a Statement of Main Terms and Conditions which included a number of relevant contractual terms for when a situation arose concerning temporary stoppage of work. This document provided for a ‘Layoff period’ during which the employee would not be paid but could be reengaged when work restarted. In 8 December 2016 the claimant was advised that the cleaning contract was moving elsewhere and his final shift would be on 17 December 2016. 

At no point did the respondent consider placing the claimant on notice of possible redundancy or initiating the “lay off” contractual provision. The respondent appeared to expect the claimant to agree to receive no payment if no hours of work were offered. The employment was eventually terminated but the tribunal held that the claimant was never consulted, nor did he agree to receiving no payment in respect of his contractual hours' entitlement where no offer of contractual hours was made to him. The claimant was awarded for the failure to pay his wages in lieu of notice and also for unpaid wages.

Practical Lessons

Employers are entitled to ‘lay off’ an employee i.e. request that they stay home or take unpaid leave when there is a temporary period without paid work- so long as the employment contract allows this. Employees can alternatively be placed on ‘short term working’, which may help to avoid redundancies, but again this must be agreed beforehand. Failing that, an attempt to impose short time working on an employee unilaterally will amount to a breach of contract, and likely a repudiatory breach.

Here, the respondent failed to consider triggering the ‘lay off’ period which was contained in the employee’s contract and the tribunal recognised that this should have been done in the circumstances. The respondent’s failure to utilise this contractual provision and its subsequent failure to consider any payment for the employee ultimately cost it.

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. Budget 2017

In his second budget as Chancellor Philip Hammond announced plans to build an economy fit for the future for the next generation, creating “a future that will be full of change; full of new challenges and above all full of new opportunities,” yet it has had a mixed reception.

Many conservative party members described it as “solid,” “common sense” and “nothing too dangerous,” whilst others criticised it for failing to address the squeeze on household incomes. The most surprising budget proposal was, of course, the immediate abolition of stamp duty for first-time buyers purchasing properties worth up to £300,000, with some suggesting it will simply increase the sum needed for a deposit. Other features were also met with scepticism, particularly those relating to housing regeneration, growth productivity and NHS funding.

Northern Ireland will get an extra £540m to spend on infrastructure over the next four years as a result of the Budget. The Secretary of State said that overall it means the Northern Ireland block grant will increase in real terms over the Spending Review Period between 2015 and 2020. Much of the additional infrastructure spending (£375m) takes the form of what is known as Financial Transactions Capital (FTC). FTC differs from normal capital spending, taking the form of a loan or investment in a private sector project. In the past Stormont departments have had difficulty finding suitable FTC projects, though a Northern Ireland investment fund has been established to help make better use of this money.

Chancellor Philip Hammond also announced a consultation on a city deal for Belfast. This would allow the city to have powers to create economic growth, help businesses grow and decide how public money should be spent.

Spending for Northern Ireland is largely determined by the operation of the Barnett Formula meaning that if spending falls or rises on public services in England, it will also change by a proportionate amount in Northern Ireland. Uncertainty remains as to what this means in real terms owing to the current lack of devolved government arising from political stalemate, resulting in outrage over public sector pay and an increased pressure on public services.

Secretary of State James Brokenshire said the passing of budget legislation "should not be a barrier to negotiations to continue, but the ongoing lack of agreement has had tangible consequences for people and public services in Northern Ireland". More from the BBC:
http://www.bbc.co.uk/news/uk-northern-ireland-41962296

From an employment perspective:

• The Tax-free personal allowance on income tax is to rise to £11,850 in line with inflation in April 2018;
• The National Living Wage is to rise in April 2018 by 4.4%, from £7.50 an hour to £7.83;
• A proposal to relax the longstanding public sector pay cap, and more immediately, to fund pay awards as part of a pay deal for NHS staff on the ‘Agenda for Change’ contract, which covers midwives, nurses and paramedics. However, any deal struck will be on the condition that  the pay award enables improved productivity in the NHS, and is justified on recruitment and retention grounds;
• A proposal that government will consult on extending the reformed ‘off payroll’ IR35 working rules into the private sector, in a move that is likely to cause huge technical and practical upheaval for many HR departments. IR35 rules were introduced to the public sector in April,  and have meant that contractors must be either paid through PAYE or as genuinely self-employed individuals;
• £20m investment in a national retraining scheme designed to boost digital skills and the expansion of the tech sector;
• Productivity growth is revised down by an average of 0.7% a year up to 2023;
• Another 600,000 people are forecast to be in work by 2022;
• The lifetime allowance for pension savings will increase in line with the consumer price index, rising to £1,030,000 for 2018-19;
• Employees who charge electric vehicles at work will not face a benefit in kind charge from next year;
• There will also be £34bn to help develop skills and fund more jobs in the construction sector, as well as to ease the housing crisis.

In its post-budget analysis think-tank the Resolution Foundation claims the UK is on course for its longest fall in living standards since records began over 60 years ago, stating the squeeze on incomes is set to last longer than that which followed the post-2008 crash. Yet its main focus was on the growth downgrade. The Independent Office for Budget Responsibility cut its growth forecast sharply for 2017, from 2% to 1.5%, with growth for the next five years forecast to come in well under 2%. The Resolution Foundation said that tax and benefit policies were set to put downward pressure on living standards and upward pressure on inequality, and would take an average of £715 away from the poorest third of households a year, while giving £185 to the richest third.

The Government has announced it will publish a discussion paper as part of its response to the Taylor Review of Employment Practices, in an attempt to explore the options available for longer-term reform to make employment status tests for both employment rights and tax clearer. The Chancellor has also considered a controversial crackdown on bogus self-employment to the private sector in response to a draft bill published by work and pensions committee and the business select committee. The bill said the law around the gig economy should be tightened to stop companies using false self-employment status for “cheap labour and tax avoidance”, to prevent the law being used to facilitate workers’ exploitation for competitive advantage. Employment lawyers, however, warned that the bill’s proposal to place the onus of choosing the appropriate employment status on employers could lead to an unfair burden on businesses. More from the CIPD:
http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2017/11/21/businesses-could-face-fines-for-false-self-employment.aspx

More from the BBC and CIPD:
http://www.bbc.co.uk/news/uk-politics- 42056452
http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2017/11/22/budget-2017-the-hr-lowdown.aspx

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3. Brexit Update

MPs Vote against Retaining EU Charter of Fundamental Rights in UK Law after Brexit

MPs have voted against a Labour bid to retain EU human rights measures in UK law post-Brexit after the Government offered Conservative rebels an eleventh-hour concession. The amendment to the EU (Withdrawal) Bill was defeated by 311 votes to 301, giving the Government a majority of just 10.  Just one Conservative MP, Ken Clarke, defied the Government whip and voted for the motion to retain the EU Charter of Fundamental Rights, put forward by Jeremy Corbyn. Civic organisations warned that individual rights to privacy, equality, freedom of expression, fair working conditions, a fair trial, access to a lawyer and the protection of personal data are all in potential jeopardy if the charter is stripped from the UK state book after Brexit, in March 2019. More from the Independent:
http://www.independent.co.uk/news/uk/politics/brexit-eu-charter-fundamental-rights-commons-uk-eu-defeat-a8068326.html

Irish Law Firms Approached for Post-Brexit M&A

Nearly half of Ireland’s Top 20 law firms have been approached by a UK law firm in the past year with regard to a possible merger, acquisition or strategic representation arrangement following the UK’s exit from the EU.

Smith & Williamson’s annual legal survey unveiled that Brexit, growth and the economy were key concerns for Irish law firms this year. According to the survey, leading firms are implementing a Brexit strategy, viewing the UK's exit from the EU as an opportunity or a threat to their firm. The survey identified a number challenges firms are likely to face over the next twelve months, namely maintaining profitability; managing cash flow; pressure on fees; the economy; and recruitment and retention of staff.

Paul Wyse, Managing Director at Smith & Williamson, said “We are in a period of uncertainty about Brexit and many firms are concerned about the impact it will have on their business. Two thirds of the Top 20 firms are executing Brexit strategies and there are also concerns about increased competition from UK firms setting up operations in Ireland. An increasing number of firms outside Dublin are reporting negative Brexit impacts but only three per cent have Brexit strategies in place.” More from Irish Legal:
http://www.irishlegal.com/9431/nearly-half-of-top-irish-law-firms-approached-for-post-brexit-merger-or-acquisition/

The Taxation (Cross-border Trade) Bill 2017-19

The Bill will impose and regulate a duty of customs by reference to the importation of goods into the United Kingdom; confer a power to impose and regulate a duty of customs by reference to the export of goods from the United Kingdom and make other provision in relation to any duty of customs in connection with the withdrawal of the United Kingdom from the EU. It will amend the law relating to value added tax and the law relating to any excise duty on goods in connection with that withdrawal.

The Bill was introduced in the House of Commons and given its First Reading following debate and approval of the relevant Ways and Means Resolutions on Monday 20 November 2017. MPs will next consider the Bill at Second Reading. More from Parliament.uk:
https://services.parliament.uk/bills/2017-19/taxationcrossbordertrade.html

Let’s Talk About…Employees and Immigration Post-Brexit

In the second of her series Lisa Bryson, Principal Associate of Eversheds-Sutherland, answers complex questions regarding employees and immigration post-Brexit, providing valuable information to those affected by the cessation of the free movement of people. Lisa discusses access to employment, how the rights of EEA nationals will be affected in the future and identifies some precautionary measures employers may wish to take in order to reassure their employees. Look out for more ‘Let’s Talk About…’ articles from Lisa in the months ahead.
https://www.legal-island.com/articles/uk/features/lets-talk-about/2017/nov/employees-and-immigration-post-brexit/

Labour Single Market Motion Blocked

Backbench Labour MPs have reacted angrily after their leadership helped to block a bid to keep the UK inside the EU single market and customs union. An amendment to trade legislation put forward by Edinburgh South MP Ian Murray would have prevented any import duties being added to products arriving from the EU, putting a legal barrier in the way of the UK Government's plans to leave the trading bloc. The motion was opposed by members of Jeremy Corbyn's shadow cabinet, leading to accusations that the Labour front bench had "betrayed" remain voters who backed Labour to fight Brexit. More from the Scotsman:
http://www.scotsman.com/news/politics/labour-mp-ian-murray-has-single-market-motion-blocked-1-4619142

What Happens to the Irish Border Post-Brexit?

According to Arlene Foster, Ireland's Taoiseach Leo Varadkar "should know better" than to "play around" with Northern Ireland over Brexit. Following talks with Prime Minister Teresa May, the leader of the Democratic Unionist Party accused Mr Varadkar of being "reckless" as Brexit talks enter a "critical phase." The Irish government has insisted a hard border with Northern Ireland should be off the table and has sought clarity on the issue as talks continue:

"We've been talking 18 months, we've been given assurances now for 18 months since the referendum that there'll be no hard border in Ireland, that there won't be any physical infrastructure, that we won't go back to the borders of the past. We want that written down in practical terms in the conclusions of phase one."

There have been growing logistical concerns about what happens to the Irish border after Brexit. An EU paper recently suggested Northern Ireland would have to continue to follow many EU rules after Brexit if a hard border was to be avoided. It implied Northern Ireland may need to stay in the EU customs union if there were to be no checks at the border, something the UK government will not accept.

Mrs Foster criticised Mr Varadkar's comments suggesting the UK's exit from the EU would jeopardise the peace process, labelling it "a very careless thing to say," particularly with no devolved administration in place. Mrs Foster has sought to proceed to the second phase of talks as trade arrangements are linked to the border situation. Nigel Dodds, deputy leader of the DUP, has warned that any prospect of the border moving to the Irish Sea after Brexit (an idea suggested by some within the Irish government) would be "madness economically, never mind the political consequences".

But Ireland's Foreign Minister Simon Coveney said his government was right to seek more assurances about the border issue before agreeing to the next phase of Brexit talks.

"This is a much bigger issue than trade, this is about division on the island of Ireland." More from the BBC:
http://www.bbc.co.uk/news/uk-politics-42064743

A Time of Crisis and Challenge — Brexit and our Constitutional Future

Dr Colin Harvey, Professor of Human Rights Law in the School of Law, Queen's University Belfast, analyses the constitutional status of Northern Ireland and the Good Friday Agreement in light of the UK's imminent Brexit. In a recent article in the Derry Journal, Dr Harvey offers his views on the repercussions of Brexit across the island of Ireland and is certainly well worth a read. More from Queens:
http://qpol.qub.ac.uk/crisis-challenge-brexit-ni-constitutional-future/

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4. Data Protection Update

Data Breach by Uber Concealed

Uber has confirmed it concealed a hack that affected 57 million customers and drivers. The 2016 breach was hidden by the ride-sharing firm which paid hackers a ransom sum of $100,000 (£75,000) to delete the data. The hackers found 57 million names, email addresses and mobile phone numbers. Within that number, 600,000 drivers had their names and licence details exposed. Uber did not confirm precise details of the hack and it is not known which countries were affected, but according to Bloomberg's report, two hackers were able to access a private area of Github, an online resource for developers.

According to Uber's Chief Executive Dara Khosrowshahi:

"While we have not seen evidence of fraud or misuse tied to the incident, we are monitoring the affected accounts and have flagged them for additional fraud protection. None of this should have happened, and I will not make excuses for it.  While I can't erase the past, I can commit on behalf of every Uber employee that we will learn from our mistakes." More from the BBC:
http://www.bbc.co.uk/news/technology-42075306

The ICO has published a statement in relation to the revelation that Uber attempted to conceal the significant data breach affecting millions. ICO Deputy Commissioner, James Dipple-Johnstone, said,

"We can confirm that UK citizens have been affected by the data breach involving Uber last October. As UK citizens would expect, the ICO is in direct contact with the company to establish the numbers and what kind of personal data may have been compromised. We are working with the NCSC plus other relevant authorities in the UK and overseas to determine the scale of the breach, and what steps need to be taken by the firm to ensure it fully complies with its data protection obligations. It's always the company's responsibility to identify when UK citizens have been affected as part of a data breach and take steps to reduce any harm to consumers. Deliberately concealing breaches from regulators and citizens could attract higher fines for companies." More from the ICO:
https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2017/11/updated-ico-statement-on-uber-data-breach/

The General Data Protection Regulation must be implemented throughout the EU by way of domestic legislation by 25th May 2018. In the UK, government has published "A New Data Protection Bill: Our Planned Reforms", which highlights how the GDPR will be implemented throughout the UK. The headlines point to fines of €20m euros for data breaches, although costs could actually be much higher – civil action by those affected by a data breach and imprisonment in certain cases.

Legal-Island is hosting a Data Protection Update designed specifically for HR professionals to enable you to get your department in order by 25th May 2018 - the early bird rate is still available - and so we encourage you to act quickly! Visit our Employment Law Hub to learn more about the event:
https://www.legal-island.com/event/data-protection-update-ensuring-your-hr-department-is-gdpr-compliant_ni/

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5. National Living Wage and National Minimum Wage Rates

The government has published a response to the Low Pay Commission’s recommendations on National Living Wage and National Minimum Wage rates. The LPC was asked to make a number of recommendations to ensure the lowest paid are fairly rewarded for their contribution to the economy. In making these recommendations the LPC was asked to consider the pace of the increase, taking into account the state of the economy, the impact upon employment and unemployment levels, and relevant policy changes.

The LPC has recommended that the hourly rates should increase in April 2018:

  • from £7.50 to £7.83 for workers aged 25 and over (the National Living Wage)
  • from £7.05 to £7.38 for 21-24 year olds
  • from £5.60 to £5.90 for 18-20 year olds
  • from £4.05 to £4.20 for 16-17 year olds
  • from £3.50 to £3.70 for apprentices aged under 19 or in the first year of their apprenticeship.

Government has accepted these recommendations. Read the response in full:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/660935/nlw-nmw-govt-response-to-lpc-autumn-2017-report.pdf

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6. A Solicitor’s Guide to Drafting Disciplinary Allegations - Q&A

Following a hugely successful presentation at this year’s Annual Review of Employment Law, Gareth Walls, Partner in A&L Goodbody, answers questions submitted by the audience on his topic entitled, ‘A Solicitor’s Guide to Drafting Disciplinary Allegations’.

Read the Q&A here: https://www.legal-island.com/articles/uk/features/supplementary/2017/nov/guide-to-drafting-disciplinary-allegations/

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7. Employment News in the Media

Support staff at the University of London are launching a landmark legal challenge over pay and the conditions under which they work, in a case that could change the lives of outsourced workers across a slew of industries nationwide. The Independent Workers’ Union of Great Britain (IWGB) on behalf of the receptionists, security officers and porters working at the university (but technically employed through a facilities management company) will argue the workers have the right to collectively bargain over pay and conditions directly with the university. It will argue denial of the right to collectively bargain with their de-facto employer is a breach of Article 11 of the European Convention on Human Rights. More from the Independent:
http://www.independent.co.uk/news/business/news/university-london-outsourced-workers-better-rights-lawsuit-iwgb-cac-a8066811.html

Four staff members have been suspended from Muckamore Abbey Hospital in Antrim while police investigate allegations of the "ill-treatment" of patients. The hospital provides acute inpatient care to adults with an intellectual disability, behavioural or mental health problems. The four individuals have been put on precautionary exclusion from work while a full internal investigation is undertaken. More from the BBC:
http://www.bbc.co.uk/news/uk-northern-ireland-42058205

A technology company is creating 69 new jobs in an expansion of its operations in Londonderry. MetaCompliance said the posts, in IT and sales, will be created over the next three years, a move that will treble its workforce. According to Invest NI, the jobs "will generate £1.7m annually in additional salaries for the local economy". More from the BBC:
http://www.bbc.co.uk/news/uk-northern-ireland-foyle-west-42080507

Workplace behaviour has never been so scrutinised. However, in the wake of the outpouring of stories about sexual harassment and assault that followed the allegations against Harvey Weinstein there was a dangerous conflation of consensual behaviour with the non-consensual. With festive season and the office Christmas do around the corner it is important to know how to navigate the boundaries. More from Evening Standard:
https://www.standard.co.uk/lifestyle/london-life/office-christmas-party-rules-a3697486.html

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8. 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.

Gig Economy Bill

The Work and Pensions and Business, Energy and Industrial Strategy Committees have published a joint report and draft Bill to close the loopholes in GB that allow companies to use bogus "self-employment" status as a route to cheap labour and tax avoidance, saying the law must not allow willingness to exploit workers to be a competitive advantage.

Rachel Reeves MP, Chair of the Business, Energy and Industrial Strategy Committee, said: "Uber, Deliveroo and others like to bang the drum for the benefits of flexibility for their workforce but currently all the burden of this flexibility is picked up by taxpayers and workers. This must change. We say that companies should pay higher wages when they are asking people to work extra hours or on zero-hours contracts."
http://www.parliament.uk/business/committees/committees-a-z/commons-select/work-and-pensions-committee/news-parliament-2017/future-of-work-report-17-19/

The draft Bill has interesting definitions of employment and worker status:
https://publications.parliament.uk/pa/cm201719/cmselect/cmworpen/352/35209.htm

The CIPD reports the move as "Businesses could face fines for false self-employment":
http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2017/11/21/businesses-could-face-fines-for-false-self-employment.aspx

Pregnancy and Maternity Discrimination at Work

Acas has published new guidance that can help employers create supportive workplaces for women during pregnancy and maternity leave. Last year Acas received more than 14,000 calls about pregnancy and maternity issues, an increase of almost 10% on the previous year.

The guidance offers employers advice on how to comply with the Equalities Act, which protects employees against pregnancy and maternity discrimination. It includes:

  • employees on maternity leave should be made aware of opportunities for promotion and training
  • pregnancy related absences must not be included in an employee's absence record
  • employees must not be dismissed or made redundant for any issue related to pregnancy or maternity leave or maternity pay.

The guidance also recommends that employers:

  • develop a policy so that all employees understand their rights and responsibilities in relation to pregnancy and maternity discrimination
  • provide a suitable place for pregnant employees to rest in line with the law
  • identify and deal with risks to health and safety of a pregnant employee and their unborn child.

According to Julie Dennis, Acas Head of Diversity and Inclusion, "Women should not suffer any unfair treatment while pregnant or on maternity leave and most employers treat their employees fairly. But those that don't could find themselves at an employment tribunal. This new guidance can help managers deal fairly with women at work in areas such as recruitment, promotion and redundancy." More from Acas:
http://www.acas.org.uk/index.aspx?articleid=6079

Sexual Harassment at Work

Still with Acas, the organisation has published new guidance on sexual harassment in the workplace. The media has reported on many high profile cases of abuse over the past few weeks which has drawn attention to sexual harassment in a variety of settings. In response to this Acas has outlined what kind of workplace behaviours could be considered sexual harassment and how to report it.

The new advice includes examples of how sexual harassment can happen at work such as:

  • written or verbal comments of a sexual nature such as remarks about a colleague's appearance, questions about their sex life or offensive jokes
  • displaying pornographic or explicit images
  • sending or forwarding on emails that contains content of a sexual nature
  • unwanted physical contact and touching
  • sexual assault.

Organisations and businesses should be clear to workers about what sorts of behaviours are unacceptable and would be considered sexual harassment. If a worker experiences harassment from someone in a position of power or influence then they should check if there are workplace policies to address the issue internally before dealing with the problem externally. Any complaint of sexual harassment that includes sexual assault or physical threats is a criminal act and should be reported to the police. An employer can still investigate the complaint and follow its own disciplinary procedure whilst criminal proceedings are ongoing. More from Acas:
http://www.acas.org.uk/index.aspx?articleid=6078

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9. South of the Border

This section is brought to you by Ciara Fulton, Senior Partner at Jones Cassidy Brett. Ciara is dual-qualified and practices law throughout the island of Ireland. Contact Ciara on cfulton@jcbsolicitors.co.uk

Gender Pay Gap Reporting

Last week in the Dáil, Deputy Clare Daly asked the Minister for Justice and Equality his plans to introduce mandatory reporting by companies registered here of the gender pay gap in their companies as part of annual reporting requirements; and if he will make a statement on the matter.

Minister of State at the Department of Justice and Equality (Deputy David Stanton) replied: The Programme for a Partnership Government includes a commitment to promote wage transparency by requiring companies of 50 or more employees to complete a wage survey.  Reflecting this, the National Strategy for Women and Girls 2017-2020 contains an action to promote wage transparency by requiring companies of 50 or more employees to complete a wage survey periodically and report the results.

A public consultation on Measures to Tackle the Gender Pay Gap concluded on 4 October and an analysis of the submissions is under way. The issue, and in particular the role of wage surveys, will be considered at a symposium planned for 4 December.  I intend that a programme of actions on the gender pay gap will be developed, following the symposium and further consultation with stakeholders, to be undertaken in 2018.  As part of this, the details of the wage survey measure will be elaborated.
http://www.justice.ie/en/JELR/Pages/PQ-16-11-2017-118

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10. Friends of Legal-Island

'Equality, Diversity & Inclusion'

The Northern Ireland Talent Development & Retention Forum has been set up by Vibrant Talent Development to create a supportive hub in NI where people can come together to learn from each other and problem solve in the areas of talent attraction, acquisition, development and retention.

There's only a few tickets left for our second event taking place on December 11th in the Grand Opera House and featuring guest speakers Barry Phillips (CEO of Legal Island & Founder of the NI Equality & Diversity Awards) and Eileen Chan-Hu (the CEO of CRAICNI & an Equality Commissioner). The theme for this event is 'Equality, Diversity & Inclusion'. Tickets are just £10 to include tea/ coffee, breakfast baps and a stimulating morning with a room full of top professionals! Our first event sold out so reserve your ticket for the next below:
https://www.eventbrite.co.uk/e/northern-ireland-talent-development-retention-forum-tickets-38810014799

We look forward to welcoming you at the event!

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11. Weekend Weather and Thought-Provoking Video

We will see a mixture of sunny intervals and wintry showers on Friday, with snow on high ground especially later in the day. Clear spells and ice in evening. Sunny spells and a few showers are expected over the weekend, with more persistent rain and hill snow for a time on Monday.

Maximum daytime temperatures of 5-6°C.

Go to the BBCNI for local information:
http://bbc.in/tw39eP 

This week's thought-provoking video is about the inevitable death of planet earth but in a fun way. The biggest obstacle to dealing with climate disruptions lies between your ears, says psychologist and economist Per Espen Stokes. He's spent years studying the defences we use to avoid thinking about the demise of our planet -- and figuring out a new way of talking about global warming that keeps us from shutting down. Step away from the doomsday narratives and learn how to make caring for the earth feel personable, do-able and empowering with this fun, informative talk. (15:00)
https://www.ted.com/talks/per_espen_stoknes_how_to_transform_apocalypse_fatigue_into_action_on_global_warming?
 
* 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/

Enjoy the weekend.

Legal-Island

This article is correct at 24/11/2017
Disclaimer:

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.

Legal-Island
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The main content of this article was provided by Legal-Island. Contact telephone number is 028 9446 3888 / 01 401 3874 or email scott@legal-island.com

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