Employment law news round-up, October 2016

The latest employment law news in brief for October 2016.

26/10/2016

As the Autumn season gets into full swing, Ashley Norman provides a round-up of this month's key employment news in brief, including holiday pay, shared parental pay, data protection and the GMC, and new judicial assessment of the merits of ET claims. We also look at the latest Brexit developments and provide details of a free webinar and our next series of on-site training events.

Immigration law - free webinar

Please click here to access a free Bevan Brittan webinar on 'Right to Work Checks: Understanding and Complying with the Law', by Jaspal Basra, one of our immigration law specialists.  The webinar covers

  • key legal obligations
  • practical steps in making checks; and
  • dealing with queries.

Please note that the law in this webinar is as stated as at Summer 2016 and that it is intended to provide general guidance rather than specific legal advice. If you have a specific query on right to work checks or any other aspect of immigration law, including our bespoke immigration law training, please contact Jaspal Basra or Ashley Norman.

Free client updates – December 2016 

Our annual round-up of the latest developments in employment law, and preview of forthcoming changes, will be taking place in December at our offices, on the following dates and at the following locations.

  • Birmingham – 6 December 2016
  • Bristol – 7 December 2016
  • Leeds – 8 December 2016
  • London – 14 December 2016

Registration will open at 9.30am, with the session starting at 10.00am and followed by lunch at 1.00pm. This is a free event and places are booking fast. Please click here for more details and booking arrangements.

Statutory holiday pay and results based commission

In the latest development in the long-running saga of the correct calculation of holiday pay, the Court of Appeal has handed down its judgment in British Gas Trading Limited v Lock.

This judgment picks up the holiday pay story where Bear Scotland v Fulton left off. In Bear Scotland, it was decided that an employer should include overtime in their holiday pay calculations. In Lock, Mr Lock, worked as salesman for British Gas and an important component of his pay was based on commission. This had the effect that his wages were significantly reduced as a knock-on effect of taking holiday. Following a reference to the European Court of Justice, an employment tribunal held that results-based commission must be included in the four weeks' of statutory holiday pay; this decision was appealed to Employment Appeal Tribunal (EAT), which agreed with the employment tribunal. British Gas appealed to the Court of Appeal which has also agreed with the tribunal and the EAT that results based commission should be included in holiday pay calculations.

In terms of the practicalities of making a payment, however, the court did not make any comments, only observing that there may be questions as to what the appropriate reference period to be used – citing the hypothetical example of a banker paid a large annual bonus in, for example, March each year: should their summer holiday pay incorporate the bonus payment?

This is, however, unlikely to be the last we have heard on the question of holiday pay: we understand that British Gas will apply for permission to appeal to the Supreme Court. It is interesting to note that the Court of Appeal said in its judgment that it "waivered" in its decision; so, despite the run of successful appeals in this litigation, the outcome of any Supreme Court case is not a foregone conclusion.

Shared parental leave pay

Now that shared parental leave and pay has been available for over a year, we are starting to see cases coming through on the equality aspects of shared parental pay.

As we reported earlier this year, a male employee had come to individual arrangements with his employer to equalise his shared parental leave pay with the pay of female colleagues. We now have a Scottish employment tribunal decision, in which the employer admitted that paying enhanced shared parental leave pay to mothers but not fathers was discriminatory (and, interestingly, then revised payments downwards for both genders).

As liability was admitted, the tribunal only had to consider the level of compensation to award to the claimant. In Snell v Network Rail Infrastructure Limited (unreported) the tribunal awarded the claimant approximately £23,000 including £6,000 injury to feelings and £16,129 for future loss, being the difference between statutory shared parental pay and what he would have received had he been entitled to the enhanced level of pay. These figures do, however, only offer a guide to any damages awarded by another tribunal, as this decision is not binding. Had this case continued to a full hearing, Network Rail intended to justify its policy on the basis that the correct comparator for the claimant was a female partner and not a mother or primary carer, and that even if the policy put the claimant at a disadvantage, it could be objectively justified (as a way of attracting and retaining female employees to a male dominated workforce).

GMC competence report: subject access request refused

In Dr DB v General Medical Council (23 September 2016), the High Court has decided that the General Medical Council was wrong to comply with a patient's subject access request for disclosure of a report into his former doctor's competence. The High Court had to balance the doctor and the patient's competing privacy rights under the Data Protection Act 1998 (DPA), and the court concluded that the report should not be disclosed to the patient.

It is interesting to note that, in coming to its decision, the High Court took into account the fact that the subject access request was made pursuant to potential legal action by the patient against the doctor in question: so if the sole or dominant purpose of the subject access was litigious, then this was a significant factor to consider in conducting the balancing exercise between competing privacy rights.

Finally, the judge provided the following practical guidance steps for data controllers balancing rights under the DPA in future mixed data cases.

  • The exercise involves a balance between the respective privacy rights of data subjects.
  • In the absence of consent, the starting point is against disclosure. Express refusal of consent is an additional specific factor to take into account.
  • If the sole or dominant purpose is to obtain a document for litigation purposes, then that is a weighty factor in favour of refusal.

If you require further guidance on this topic, please get in touch with your usual Bevan Brittan contact or Joanna Smart, in our specialist Information Law team.

Employment tribunal news: new early judicial assessments available

In line with the current focus on reducing the number of tribunal claims which proceed to a full hearing, it is now possible for either party to request an early, non-binding, judicial assessment of the relative merits of a case. This is operated under a new protocol, which can be accessed here. It is a voluntary and confidential process. If the case proceeds to a final hearing, a different judge will preside and will not see the notes of the judge who made the initial judicial assessment. The assessment is undertaken at the case management hearing, before any witness evidence is presented, with a view to assisting parties with settlement discussions.

Brexit news

  • Whilst the question of whether we will have a 'hard' or 'soft' Brexit is still undecided, it seems that, either way, employers will not see an immediate reduction in employment regulation following our departure from the EU. In her speech at the Conservative conference, Teresa May announced that after triggering Article 50, current EU derived employment rights will remain protected under domestic law. Of course, after we have left the EU, the government would then be free to repeal, retain or amend any existing EU derived employment obligations which have been incorporated into UK law. It is also very likely that European case law will remain highly persuasive when the courts are interpreting legislation which is rooted in Europe.
  • Whether employment regulation will be "watered down" post-Brexit formed part of the 170 questions which the Shadow Brexit Secretary and Shadow Foreign Secretary have posed to the Secretary of State for Exiting the European Union, David Davis. Questions were also asked about whether the government would guarantee the rights of EU migrant workers currently living in the UK, with reciprocal guarantees for UK citizens currently living elsewhere in Europe.
  • A new House of Commons briefing paper has been published outlining the employment law implications of leaving the EU. Given that it is impossible, at this early stage, to say exactly what those implications may be, the paper is light on details. It does, however, look at the mechanics of the incorporation of EU employment law into UK law, and also sets out a useful table setting out EU employment rights and how they are incorporated into UK law.  

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