Employment Law Update (In A Nutshell)

employment law updateWelcome to this HR Blast from Jaluch. What a busy summer we have had! Unprecedented numbers of grievance investigations and hearings being brought to us by our clients on a whole variety of topics. Employee unrest appears to be consuming a lot of management time.

But unrest aside, in this Blast we wanted to ensure your employment knowledge is up to date. No new legislation as such has been introduced but, as always, case law, best practice and topics in the media spotlight are continually moving the goalposts. So here is our employment law update, in a nutshell.

  1. Vento bands and discrimination cases

Vento bands are the compensation bands that Tribunals use when deciding compensation for injury to feelings when a discrimination case is won. Injury to feelings compensation is awarded in successful discrimination claims over and above compensation for loss of office/earnings and any notice pay or other contractual monies due.

The new Vento bands will apply to any employment tribunal claims issued on or after 11 September 2017:

  • lower band (less serious cases): £800 to £8,400
  • middle band: £8,400 to £25,200
  • upper band (the most serious cases): £25,200 to £42,000
  • exceptional cases: over £42,000
  1. Transgender challenges

A huge topic in the media, but what is the reality? In 2011 about 0.3% of the US population was estimated to identify as transgender. In 2016 some estimates had doubled that figure to 0.6% although we have seen other reports that continue to quote 0.3% in 2016. In any event, 0.6% equates to 1.4 million US adults.  The UK figures are thought to be lower than those of the US, but without the subject being included in official surveys, it’s hard to do more than guesstimate. One survey suggested 0.1% in the UK have undergone a sex change – that equates to 660,000, but up to 0.3% identify as ‘trans’.

The reality of course though is that even though a small number of people are involved, organisations do need to be aware of their responsibilities in respect of those undergoing gender reassignment. The good news is that that process has just been made a whole lot easier with ACAS producing some good guidance that includes managing absence from work because of gender reassignment and supporting a ‘trans’ employee.

  1. GDPR headaches

We wrote a whole HR blast on this a few months ago, but it’s a topic that seems to be attracting increasing attention and causing a few headaches…

If just thinking about GDPR gets you yawning, then here are a few snippets for you to consider:

  1. There will be very significant penalties for breaching the GDPR, which include fines of up to 20 Million Euros or 4% of annual turnover, whichever is greater.
  2. The GDPR reverses the burden of proof so the responsibility will be on you as the employer to provide good reasons for the retention of personal data
  3. ‘Pseudonymization’ needs to be added to your dictionary – assuming you’re not ahead of the game and already there!
  4. You need to be issuing privacy notices to job applicants.

Interested? Read our HR Blast: HR and GDPR

Given the new GDPR headaches and worry, why not save both time and money by checking out our online template letters and a revised template data protection policy.

  1. CCTV and staff monitoring uproar

‘I spy with my little eye’ has become a bit ‘passé’. Sensors are being fitted by some companies on desks to detect a person’s presence through heat and motion sensors and TFL is installing driver protection devices to set off an alarm if the driver falls asleep. All in all, employee monitoring is moving up a gear. But are employees ready for all the technology that monitors their every move – and keystroke?

The desk sensors are ostensibly to ensure companies can optimise hot desking in order to reduce their ‘property footprint’ and cameras and alarms in public transport are ostensibly to protect passengers from crashes caused by sleepy drivers, rather than spy on the drivers, but it’s all adding to the ‘big brother’ feel of society. Technology is also being used in some workplaces to track employee work patterns by monitoring use of computers, tablets and mobile phones. Freespace and OccupEye are just a couple of the technologies currently in the market.

The reality of course is that if sensors can help identify in large offices where free work stations are for the hot desk-ers hunting down a place to sit, or help an organisation increase its efficiency by switching on and off air con in busy or unused offices, then that’s got to be a good thing. But if employees perceive this to be about monitoring and surveillance rather than sensible business practices then an employee relations issue emerges.

The key, as always, when introducing anything new, is good consultation and communication coupled with a culture of trust and integrity…. Less ‘tell’ and more ‘involve’ before final decisions are made!

  1. Tribunal Fees nightmares

We wrote a month or so ago about the government being forced to abandon its current strategy of imposing fees on claimants wishing to bring a claim to employment tribunal. Since its inception in 2013 there had been around a 70% drop in claims being brought to tribunal. Read our recent HR Blast, Tribunal Fees Ruled Unlawful. 

Whilst the government has accepted the judgement of the Supreme Court and already removed fees for claims being brought, it is not yet clear whether they intend to introduce different fee rates in due course or whether they will decide that no fees should apply. Watch this space, but in the meantime, your line managers might need to learn to be a bit more employment law savvy than they have had to be in recent years.

On the upside for employers who are keen on due diligence for job applicants, the employment tribunal this year opened up online access to the public to its database of employment tribunal judgements, so you can now easily check whether staff or applicants have previously brought a claim.

  1. Shared Parental Pay Woes

Father wins sex discrimination case. The father took over child care on the birth of the child, but was not paid whilst on ‘shared parental leave’ at the enhanced rate of pay his wife would have been paid during her maternity leave period. Instead he was paid at the statutory rate. His wife returned to work after the birth of her baby on the advice of doctors and so forfeited the enhanced pay she otherwise would have been entitled to. The Tribunal decided in this father’s favour. But please do note that in two previous claims brought on this very topic one claimant lost and one claimant won and was awarded £28,000. As a result of the different judgements, please do treat this decision with caution until we have greater clarity.

Initial advice on shared parental leave when the law came in was that it could be paid at the statutory level as no legislation was in place to require employers to enhance the rate it is paid at.

Given this recent legal decision, perhaps your policy on this subject will need at some point to be reviewed to ensure men are provided with the same benefits as women during the 9 month paid maternity pay period. However, take note that Capita, the employer in this case, is likely to appeal this decision and as mentioned above, it really isn’t clear in law what the correct approach should be. So perhaps review and be aware of what you do, but at this stage just watch this space until we gain some clarity.

  1. Employees with ill or premature babies guidance

ACAS have been busy. Along with the new guidance on supporting and managing transgender staff they have also produce guidance on supporting employee with ill or premature babies. Their advice for employers includes:

  • being compassionate and sensitive in all communication
  • being discrete – ask parents what they would like to tell their colleagues about their situation
  • making employees aware of statutory entitlements to leave, such as shared parental leave
  • trying to be flexible in giving time off when parents return to work as the baby may have follow up appointments or treatment.

To read the guidance.

  1. Equal Pay threats

Asda is under threat as a result of an equal pay claim that has been described as the largest ever against a private sector employer. The shop floor workers’ claim has already been given the go ahead with the court agreeing that it is acceptable to use the warehouse staff wages as a comparator. Not surprisingly given that this is an equal pay claim, the warehouse staff are predominantly male and paid a higher hourly rate. The hearing is expected in late 2017.

This is a hot topic of course, given the BBC’s walk of shame earlier this year after publishing the wages of its top earners and remember that all companies with more than 250 staff are required to publish their gender pay gap from next April. To learn more about your obligations under gender pay reporting legislation check out an HR Blast we published earlier this year.

With equal pay in the news, is your organisation squeaky clean? Have you done an audit to ensure you know where any weaknesses in your pay and benefits?

Feeling like its all a bit precarious?

How about some employment law training for your line managers? With tribunal fees being removed and conflict seemingly at an all time high, how can we help you with increase the confidence and competence of your line managers? For more info, get in touch!

The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.

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