Ward Hadaway Guest WiFi. Password: F1rew0rk$ Employment Update. Thursday, 13 September Newcastle Leeds Manchester

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1 Ward Hadaway Guest WiFi Password: F1rew0rk$ Employment Update Thursday, 13 September 2018

2 Housekeeping 2 Ward Hadaway Guest WiFi guest@wardhadaway.com Password: F1rew0rk$

3 Agenda am 8.30am Registration & refreshments Joe Thornhill Termination and Taxation Data Monitoring 9.05am Graham Vials Equal Pay Miscellaneous Cases 9.40am Questions

4 Part 1 Termination and Taxation Joe Thornhill, Consultant

5 Termination and Taxation 5» Finance Act 2017» Attitude of HMRC» Possible repercussions of incorrect payment» Employer making good the unpaid income tax and NI;» Penalties up to 100% of unpaid income tax and NI;» Interest

6 Termination and Taxation 6» Taxable/NI-able» Earnings or allowances to date of termination.» Holiday Pay.» Bonus.» Payments pursuant to the contract of employment.» Apply normal tax code.

7 Termination and Taxation 7» Non-taxable/Non-NI-able» Statutory redundancy pay.» Enhanced redundancy pay.» Ex gratia payment.» Loans» Restrictive Covenants» Retirement» Notice

8 Termination and Taxation 8» Maximum in total - 30,000 but:-» Review» Benefits» Pension» Annual and lifetime limits» Legal Costs» Related to termination» Outplacement Costs» No maximum NI but note - April 2019

9 Termination and Taxation 9» Discrimination» Injury to feelings» Unrelated to termination of employment» Medical harm» Timing of taxable termination payment

10 Termination and Taxation 10» Notice» Taxable and NI-able.» PILON no longer relevant» Dismissal without notice» Resignation» Either» Worked taxed» Pay in lieu taxed

11 Termination and Taxation 11» Notice - Specific care» Part of notice worked.» Post Employment Notice Period (PENP)» Basic Pay for the period of notice.» Add back in salary sacrifice elements.

12 Part 2 Data Monitoring Joe Thornhill, Consultant

13 Data Monitoring 13» R (on the application of AR) v Chief Constable of Greater Manchester Police and another» Supreme Court 30 July 2018» Right to private life. The Supreme Court dismissed an appeal against a decision that the inclusion on an enhanced criminal records certificate of the fact that a job applicant had been acquitted of a charge of rape did not breach his right to private life under Article 8 ECHR.» The court considered such a reference to be reasonable, proportionate and that it did not exceed what was necessary in attaining the objective of protecting vulnerable people.

14 Data Monitoring 14» López Ribalda and others v Spain» Employee data and monitoring.» The ECtHR held that a Spanish employer s decision to install hidden video cameras to monitor suspected thefts by a number of supermarket cashiers violated the cashiers privacy rights under Article 8(1) of the ECHR.

15 Data Monitoring 15» Human Rights Act applies to:» all public authorities, and» all other bodies, whether public or private, performing public functions

16 Data Monitoring 16» Primary Focus is GDPR» Impact Assessment - correct balance between:» Allowing workers to enjoy privacy in the workplace» Ensuring the interests of the business are protected.

17 Data Monitoring 17» When conducting an impact assessment:» Identify the purpose behind the monitoring or testing and the benefits likely to be delivered» Identify any likely adverse impact of the arrangement» Consider alternatives to monitoring or testing or different ways in which it might be carried out» In particular - whether the monitoring should be covert» Consider the obligations arising from monitoring or testing» Judge whether the monitoring or testing is justified

18 Data Monitoring 18» Use of data inappropriately acquired.

19 Part 3 An update on Equal Pay Graham Vials, Partner

20 Equal Pay Basics 20» Equal Pay the principle that men and women should receive equal pay for equal work. Seeing shift from public sector to private sector» Equal Work Employees entitled to contractual terms that are as favourable as those of a comparator in the "same employment" of the other gender, if they are employed on equal work (that is, (1) like work, (2) work rated as equivalent or (3) work of equal value.» A comparator must be:» Of the opposite gender to the claimant.» Either a current or previous employee, including a predecessor.» Working "in the same employment".» Actual, not hypothetical.

21 Equal Pay Basics 21» Equality clause - replaces the less favourable term(s) with the equivalent more favourable term(s).» Material factor defence - The equality clause does not operate if the difference in contractual terms is due to a material factor which is neither directly nor indirectly sex discriminatory.

22 Equal Pay 22» Reading Borough Council v James and others UKEAT/0222/17» Question what happens if the comparator is promoted or changes role, or is assimilated to a job evaluation study at a lower rate of pay?» Facts» A local authority appealed against a decision that the claimants were entitled to equal pay, with arrears dating back to 2002.» However, one comparator (C1) had been promoted to a different role in 2006, and the other comparator role (C2) had changed in 2011.» The claimants could have used other comparators, but chose not to.» The employer argued that the claimants could not compare themselves to C1 and C2 from the date that the comparators' jobs changed.

23 Equal Pay 23» Reading Borough Council v James and others UKEAT/0222/17» Judgment» The less favourable term in a woman's contract was modified from the first date of comparison if the necessary conditions were met.» The claimants did not need to rely on C1, C2 or anyone else as a comparator once their right to equal pay had crystallised and was implied as a matter of statute into their contracts.» Nothing had been shown to have terminated, modified or varied the claimants' contracts after that point.

24 Equal Pay 24» Gender Pay Gap» Came into force on 6 April 2017 first reports April 2018» No specific enforcement powers, but» No win no fee lawyers are on the case» High profile claims in the ET (Asda, Tesco)» How to address» Equal pay review / audit» Job evaluation schemes (sword and shield)» Risks not retrospective, but once identified, flags issues to staff» Not just a public sector issue» Whatever thoughts on Brexit, EU are on the case

25 Equal Pay 25

26 Part 4 Round-up of recent key cases Graham Vials, Partner

27 Round-up of recent key cases 27» Sleeping on the job - Royal Mencap Society v Tomlinson-Blake (Care England intervening) [2018] EWCA Civ 1641» Until recently, a series of EAT decisions stretching back more than a decade appeared to establish that some sleep-in workers were entitled to be paid the national minimum wage (NMW) for every hour of their shift, including hours when they were asleep.» Complications where employers were paying sleep in allowances which may take wages below NMW.

28 Round-up of recent key cases 28» Royal Mencap Society v Tomlinson-Blake (Care England intervening) [2018] EWCA Civ 1641» Judgment» The CoA held that only the time when such workers are awake for the purpose of carrying out their duties will count for NMW calculations.» However fact specific the decision does not apply a blanket rule that all workers who may sleep during their shift are not working for NMW purposes.» Will come as a relief to organisations in the social care sector, as the prospect of paying arrears as well as increased future costs had threatened to tip an underfunded sector into crisis.» However, Unison has sought leave to appeal to Supreme Court

29 Round-up of recent key cases 29» Employment Status Pimlico Plumbers Ltd and Mullins v Smith [2018] UKSC 29» Whether a plumber was a worker for the purposes of the ERA 1996 and the WTR 1998 as well as being an employee within the extended meaning of that term in the Equality Act 2010, despite the plumber's contract labelling him as an independent contractor.» Largely fact-sensitive decision.» Comes at a time of continued interest in worker status issues and highlights the difficulties that parties can face in determining an individual's legal status for employment law purposes.

30 Round-up of recent key cases 30» Pimlico Plumbers Ltd and Mullins v Smith [2018] UKSC 29» Judgment Held he was a worker.» The case is likely to have limited precedent value.» The court determined that personal service was the dominant feature of his contract, notwithstanding a limited right of substitution. It was further clear that he was not an independent contractor, having regard to his obligations to work (albeit subject to some limits) and the tight controls to which he was subject.» Worker versus self-employed status remains a hot topic.» Important for paid holiday» NMW / PAYE

31 Round-up of recent key cases 31» Termination - Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22» Employees entitled to notice of dismissal. Effects claims, pensions etc.» In the wider field of contract law, there are numerous authorities concerning termination of a contract by notice, communicated by post (many are cited in the case reported below). Statute sometimes introduces deeming provisions. For example, in some cases the Interpretation Act 1978 introduces a rebuttable presumption that notice is effected by properly addressing and posting the notice to the recipient.» The Supreme Court considered whether there was any consistent common law principle about when a termination on notice, delivered by post, takes effect and what the position was in respect to termination in the context of an employment contract.

32 Round-up of recent key cases 32» Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22» Judgment - the contractual notice only starts to run when the letter by which it is communicated comes to the attention of the employee and they have either read it or had a reasonable opportunity of doing so.» If an employer is seeking to dismiss before a particular date for contractual purposes (perhaps, as in this case, in order to avoid liability for significant enhanced pension entitlements), employers should consider giving notice of dismissal in person, if possible, in order to ensure that the notice period has started to run and so expire before the date in question. Employers can also draft deeming provisions for their standard employment contracts.» Noteworthy that this issue caused a split between their lordships.

33 Round-up of recent key cases 33» Constructive Dismissal Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978» The Court of Appeal reviewed constructive dismissal principles, in particular whether a last straw could revive an employee's right to terminate notwithstanding an earlier affirmation of prior repudiatory conduct.» Mrs Kaur nurse. Following an altercation in April 2013 between her and another staff member, the Trust disciplined and found that Ms Kaur was guilty of inappropriate behaviour and she was given a final written warning. Her appeal was dismissed in July 2014 and she resigned the next day.» She began proceedings for constructive unfair dismissal, relying on a series of events - unjustified complaints about her performance, the altercation - the conduct of the disciplinary and appeal proceedings alleging breach of the implied term of trust and confidence.

34 Round-up of recent key cases 34» Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978» Court of Appeal had to consider Vairea v Reed Business Information Ltd [2017] ICR D9, that when a contract has been affirmed a previous breach cannot be revived.» Judgment - an employee who claimed constructive unfair dismissal because of a continuing cumulative breach of the implied duty of trust and confidence was entitled to rely on the totality of the employer's acts notwithstanding a prior affirmation of the contract, provided that the later act, the "last straw", formed part of the series. The effect of the final act was to revive their right to terminate their employment based on the totality of conduct.» In this particular case she lost but sets legal principles

35 Round-up of recent key cases 35» Finally discrimination City of York Council v Grosset [2018] EWCA Civ 1105» The Court of Appeal considered whether discrimination arising from disability had occurred where the employer had dismissed a disabled employee not knowing that the misconduct arose from their disability.» Discrimination arising from disability occurs where both:» A treats B unfavourably because of something arising in consequence of B's disability (section 15(1)(a) EqA 2010); and» A cannot show that the treatment is a proportionate means of achieving a legitimate aim (section 15(1)(b)).» Can DAFD occur even where an employer has reasonably concluded on the evidence before them that no link between actions and disability?

36 Round-up of recent key cases 36» City of York Council v Grosset [2018] EWCA Civ 1105» Judgment Yes discriminated against An employer's knowledge of the causal link is not relevant. The test is an objective rather than a subjective one.» Compensation awarded

37 Round-up of recent key cases 37» City of York Council v Grosset [2018] EWCA Civ 1105» Remedy 646,663.90

38 Any questions? 38 Joe Thornhill Consultant Employment Graham Vials Partner Employment

39 Thanks for joining us Slides from today's seminar will be ed to you shortly.