Employment law news in brief for September 2016.
The latest developments in employment law news and practice, reported by Anne Palmer. We have updated information on public sector exit payment reforms, along with all the news you need to know on this month's employment law changes, including our new monthly 'Brexit and your workforce - updater'.
The draft Public Sector Exit Payments Regulations 2016 will introduce a cap of £95,000 on the pre-tax value of exit payments made to public sector employees. These regulations were expected to come into force this Autumn, but we have received confirmation that they will be delayed and subject to further consultation. It is now anticipated that the final regulations will be published and come into force in Spring 2017.
The 'clawback' regulations - allowing for recovering of public sector exit payments where a high-earning employee is re-employed in the public sector within 12 months of receiving a severance payment - are expected to be published in their final form and in force this year.
In addition to the new cap and clawback arrangements, the government has published its response to its consultation on reform of public sector exit payments. The full response documentation can be viewed here. The new framework will require public sector employers to implement
The government has specified that it expects government departments to begin immediately producing proposals for implementing these changes, ready for consultation within three months, with a view to completing agreements within nine months, i.e. by June 2017.
Following hot on the heels of media reports of MiHomecare's alleged underpayment of wages, and various allegations around payment of staff at Sports Direct, this month the press reports that a group of care workers are bringing a claim against their employer for alleged serious breaches of national minimum wage and national living wage payments. We understand that elements of their claims relate to the complexities that can arise around minimum wage payments in relation to travel time and 'sleep in' or 'live in' arrangements – an issue which often arises for peripatetic workers, such as care workers and maintenance staff. Please click here for more information on how the complexities of this area of self-regulation work - and how you can keep yourself out of the courts and the newspapers.
And don't forget that the hourly national minimum wage rates are going up from 1 October 2016:
We understand that publication of the final gender pay gap regulations has been delayed – they were expected to be published this Summer, but are now expected imminently, with the regulations coming into force in in April 2017. If the government sticks to this latest timescale, it is likely that the first relevant reporting date under the regulations will remain at 30 April 2017 as previously announced, i.e. the first gender pay gap reports will be due by the end of April 2018.
There will be separate regulations published for the public sector – a consultation on this is out at the moment and closes on 30 September 2016. Public sector organisations will be expected to publish their data in the same timeframe as the private and voluntary sectors, i.e. data captured in April 2017 and published by April 2018.
We have fed in to the government's consultation on this development, and are also advising clients on meeting their new obligations and steps to take now to prepare for this change. Please do contact me, or your usual Bevan Brittan contact if you would like a quote for a detailed briefing on this topic.
The government has published a code of practice on the new English language requirements which will be required of 'customer facing' public sector workers. The code aims to help public authorities to determine the necessary standard of English (or Welsh, in Wales) and explains the appropriate ways in which public authorities can set a standard of spoken English or Welsh; and provides options for remedial action where employees do not meet the necessary standard for English or Welsh.
The new language standards for public sector workers are expected to come into effect in October 2016, but there is no specific commencement date as yet.
Although we still do not have binding authority on this point, an employment tribunal has recently ruled, in line with the general view amongst commentators, that voluntary overtime, and other payments associated with rotas worked voluntarily, should be included in statutory holiday pay. As this is only a tribunal decision, another tribunal would be free to reach a different conclusion – but it is indicative of the direction of travel on holiday pay calculations (Brettle v Dudley Metropolitan Borough Council ET/1300537/15).
As we enter the post-EU referendum era and shape of our future relationship with the EU begins to emerge, we will be keeping you up to date on Brexit developments as they impact on workforce issues, both via Employment Eye and our Twitter feed (@BevanBrittanEmp).
The Department for Education has published new guidance on the revised apprenticeship system including guidance on how the apprenticeship levy will work, proposals for how the apprenticeship support package for employers will work from May 2017, and what employers need to do to become a training provider.
The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975/1023 has been amended to cover activity relating to children that would constitute "regulated activity" in relation to children if it were to be carried out more frequently. The effect is that a person's spent convictions and cautions may be taken into account when assessing a person's suitability to engage in such activity with children, even if they only carry out work on an occasional basis.
A first tier tax tribunal has ruled that a free bus pass, provided by a local authority, is a taxable benefit. The Council in question had argued that the bus pass should be exempt from tax under section 243 of the Income Tax (Earnings and Pensions) Act 2003, because it constituted 'financial support' for a local bus service. The tribunal rejected that argument and said that there must be something more than simply the provision of bus passes in order to amount to 'support' for a local service, e.g. if the employer has given support to the bus operator in order to support a bus system used by its employees, a zonal pass for that system may fall within the exemption. However, on the facts of this case, there was no evidence of any such support, so the purchase of the employee's bus pass was a taxable benefit. The full decision is available here.
The Information Commissioner's Office (ICO) has published a blogpost summarising the current position on EU-US data transfers. As you may remember, the 'Safe Harbor' principle, for EU-US data transfers, was thrown into doubt by the European Court of Justice last year (please click here for an explanation). The ICO reminds organisations who continue to rely on the Safe Harbor framework that they are in breach of the Data Protection Act 1998 and potentially at risk of enforcement action. It urges organisations not to delay in making valid EU-US data transfer arrangements.
As Jonathan Moore, of our Information Law team reported last month, a fine of £40,000 has been imposed on a GP practice for a data breach involving a patient's personal details being wrongly disclosed. The fine would have been higher, but for the individual liability of the GPs for the practice.
Our Information Law team has been running a series of free briefings on the new General Data Protection Regulation. This is coming into force on 25 May 2018 and will spell a number of significant changes for the processing of personal data. We currently have spaces available for our Birmingham event on 4 October 2016 - please click here for further information and booking details.
Our annual round-up of the latest developments in employment law, and preview of forthcoming changes, will be taking place in December at Bevan Brittan's offices, on the following dates and at the following locations.
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. Please keep an eye on our website and your in-box for more details and booking arrangements.