Alastair Currie runs through this month's employment law news in brief, including: recovery of public sector exit payments, NHS agency fees caps, new enforcement measures to tackle labour market exploitation, new 'penalty notices' for non-payment of tribunal awards, new protections for zero-hour workers and helpful EU guidance on email and mobile device use at work. Finally, we also provide details of our forthcoming immigration law workshops in London on 4 February 2016 and in Bristol on 10 February 2016.

Recovery of public sector exit payments – update

HM Treasury has published a further consultation on the draft regulations which will allow for the recovery of exit payments when a 'high earner' returns to work in the public sector after receiving an exit payment.

As we have previously reported, the intention is that these new regulations will take effect in April 2016.

One significant change is that the government now proposes that the minimum annual earnings threshold for the recovery provisions should be £80,000, not £100,000 as originally proposed.

Other changes include:

  • applying the exit payment recovery policy to qualifying returners to any part of the public sector, instead of only returners to the same part of the public sector;
  • reducing the recovery amount over time for a return at any point up to 12 months from exit;
  • including employer funded pension top-up payments made under the Local Government Pension Scheme within the sums to be recovered, in order to align with the recovery of other similar payments.

The consultation documents also list the types of payment and the public sector organisations that are in scope of the regulations and those that are proposed to be exempt. It makes clear that the policy would apply to all bodies within the definition of the public sector by the Office for National Statistics (ONS), except those granted an exemption. It states that Housing Associations would be granted an exemption, as the government intends to ensure that the ONS reclassifies them as part of the private sector.

The consultation closed on 25 January 2016.

Please note that this development is separate from the proposed cap of £95,000 on public sector exit payments, under the draft Public Sector Exit Payment Regulations 2016. There is no implementation date for these regulations at present.

NHS agency staff fees price caps - update

On 15 January 2016, NHS Improvement’s Chief Executive confirmed that from 1 February 2016 the further price caps on agency staff spending will go ahead, as previously proposed. Please see page five of the original consultation document for a table showing the staged price caps for NHS staff. Monitor has also confirmed that all agency procurement for all staff groups will need to be via new approved framework agreements and suppliers will have to ensure their prices are at or below the rates NHS Improvement set. Please click here to see Monitor's full announcement.

Tackling exploitation in the labour market

On 12 January 2016, the government published its response to its consultation on tackling exploitation in the labour market.

The government intends to proceed with all four proposals on which it consulted.

  1. A statutory 'Director of Labour Market Enforcement' will be created. This will be introduced through the Immigration Bill, which is currently working its way through Parliament – however, the role will not be focussed on enforcement of illegal working, although the Director will share information on illegal working with Immigration Enforcement. The role of the new Director will focus on providing an annual 'labour market strategy', for the labour market enforcement bodies (HMRC, the Employment Agency Standards Inspectorate, and the GLA).
  2. A new offence of 'aggravated breach of labour market legislation' will be introduced. The labour market enforcement bodies will have the power to require a business, where there is reasonable belief that a labour market offence has been committed, to enter into an undertaking to take steps to prevent further offending. The enforcement bodies will be able to apply to a court for an enforcement order where a business has refused to give or failed to comply with an undertaking. In addition, courts sentencing for other labour market offences will be able to make enforcement orders of their own volition. Breach of the order would be a criminal offence carrying a maximum custodial sentence of two years. These new powers will apply to offences such as non-payment of the minimum wage and Modern Slavery offences, and these new powers will be reserved for the most serious and persistent breaches.
  3. There will be an increase in routine intelligence and data-sharing between enforcement bodies through a new "intelligence hub". Gateways between the Director, the three labour market enforcement bodies, other bodies and the intelligence hub will be created.
  4. The Gangmasters Licensing Authority (GLA) will be reformed, to increase its remit and powers. Its aims will be to prevent, detect and investigate worker exploitation across all labour sectors (at present its remit only covers aspects of the agricultural sector, food packaging and shellfish gathering). The GLA will be given police-style enforcement powers.

As Bevan Brittan's Julian Hoskins highlighted recently in an article for HR Bullets, 2016 is shaping up to be the year in which the government renews and intensifies its focus on employer regulation and compliance. We are already advising several clients whose practises are being put under scrutiny by the enforcement bodies referred to above – particularly in relation to the National Minimum Wage and the forthcoming National Living Wage, which comes into effect in April. A new factsheet published by HMRC this month sets out the basic framework and HMRC's enforcement powers, including potential criminal liability and automatic 'naming and shaming' of offenders. Please do contact me, or your usual Bevan Brittan contact, if you would like us to assist with any investigatory processes or any 'health checks' on your procedures to ensure that your house is in order if the enforcement bodies come calling.

'Penalty' notices for unpaid awards

We understand that 'penalty notices' for unpaid employment tribunal awards or settlements will be introduced, with effect from April 2016. The level of the penalty will be 50% of the outstanding amount, subject to a £100 minimum and £5,000 maximum, payable to the government, not the employee.

Please note that this is separate from the financial penalty of up to 50% of an award of compensation, introduced in 2014, payable by employers which have lost an employment tribunal with 'aggravating features' (subject, again, to a £100 minimum and £5000 maximum).

Zero-hours workers – new protections from detriment / dismissal

The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 came into force on 11 January 2016.

These Regulations provide a remedy for zero hours workers against employers who include exclusivity clauses in their contracts of employment. Exclusivity clauses in zero hours contracts were rendered unenforceable in May 2015 – please click here for more information. The regulations which came into force in January provide that

  • zero hours employees have the right not to be unfairly dismissed; and
  • have the right to not be subjected to a detriment

for failing to comply with an exclusivity clause.

New guidelines on electronic communications & mobile devices

The European Data Protection Supervisor has published two new sets of guidelines:

  1. practical advice and instruction on the processing of personal information in the use of electronic communications such as email, the internet and telephones; and
  2. practical advice on personal data and the use of mobile devices for work purposes.

This guidance is designed for EU institutions and the specific obligations that apply to them. However, although the guidelines are aimed at these specific bodies, the executive summaries make clear that anyone or any organisation interested in data protection, electronic communications and mobile devices might find them useful, as the same rules apply to the national laws of EU member states.

Please click here to contact one of our specialist employment / information lawyers, if you require any further assistance in this regard.

Practical introduction to immigration law for employers

We are running a free, practical introduction to immigration law for employers, at our London office on 4 February 2016 and in Bristol on 10 February 2016. All organisations regardless of size need to be prepared for managing their workforce within the ever tightening parameters of immigration control and requirements. This session aims to provide organisations with practical guidance on recruiting and managing the employment relationship with non UK workers.   The session will be delivered by specialist immigration and employment lawyers and will focus on a number of topics that are of great importance to those working with an international workforce, including the following.

  • The points based system
  • Sponsorship licences
  • Resident labour market test
  • Tiers and routes in to work for non EEA nationals
  • Rights of EEA citizens and derivative rights
  • The right to work and employer's liability – avoiding illegal working throughout the employment relationship
  • The Immigration Bill
  • Problem areas and pitfalls; including dealing with workers lacking correct documentation

At the close of the session we will do a case study to better examine the practical implications of some of these matters. Please click here to register your interest in this free event.

Please click here for details of our immigration law specialists and how we can assist employers recruiting and employing staff from overseas.