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UK Pensions Regulator: a new rule-making ability?

On 16 May 2019, the Department for Work and Pensions (DWP) published a periodic, government-conducted review which examines the continuing need, efficiency and good governance of the Pensions Regulator (TPR). This tailored review was conducted between August and November 2018 and led by Jamey Johnson, the former Chief Officer for Pension Wise (which is now part of the Money and Pensions Service).

One of the review’s principal conclusions is that TPR’s current form remains the most appropriate for its functions, and rejects the idea of merger with the Financial Conduct Authority (FCA). As the two bodies regulate markets with … Continue Reading

What records must an employer keep to record working time?

A recent European Court of Justice decision has held that in order to comply with the provisions of the EU Working Time Directive (No. 2003/88), employers are obliged to set up a system for measuring actual daily working time for individual workers. What impact will this have on UK employers and their obligations to their workers?

The recent case of Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE considered what records an employer was obliged to keep to comply with the Working Time Directive.  Under Spanish legislation, there are no requirements for workers to have records maintained by … Continue Reading

BIC UK Ltd v Burgess [2019] – employer appeal successful: retrospective amendment re-wrote history to an impermissible extent

BIC UK Ltd v Burgess [2019] – employer appeal successful: retrospective amendment re-wrote history to an impermissible extent

The Court of Appeal (CA) has unanimously ruled that a retrospective amendment to the deed and rules of the BIC UK Pension Scheme (the Scheme) was invalid.

Last year, the High Court had ruled that whilst the relevant deed of amendment had involved “an element of re-writing history” it did “not involve doing so impermissibly”. The CA disagreed and said that “…the past cannot be rewound and replaced with a different version of history Continue Reading

Changes to off payroll working rules from April 2020

HMRC has published its latest consultation on off payroll working rules. As we have previously discussed (Global Workplace insider post – June 2018), the reformed off payroll rules which have applied in the public sector since April 2017 will be extended to the private sector from 6 April 2020.  The consultation has raised significant issues for private sector employers who employ contractors.

The off payroll working rules, known as IR35, are intended to ensure that individuals who personally provide their work to a client via their own personal service company or other intermediary, pay broadly the same employment … Continue Reading

UK pensions: Does an employer have a duty to advise a dying employee on the implications of taking ill-health benefits early?

The smooth operation of a pension scheme depends on an efficient flow of information between the employer and the member. Frequently, the Pensions Ombudsman is asked to consider scheme trustees’ and employers’ duties on providing benefit information to members.

Where the law is silent, this can be a tricky area to navigate and considerable uncertainty may arise. What level of information should trustees and employers provide to a member given a diagnosis of terminal ill-health? When might this information stray into the territory of unauthorised financial advice?

Two illustrative cases

In February 2019 (Mrs T – PO-19080), the … Continue Reading

Ethnicity pay gap reporting in the UK

As reported in an earlier post, the UK Government introduced mandatory gender pay gap reporting in 2017.

An independent review conducted in 2017, Race in the workplace, made a number of recommendations for removing the barriers to workplace progression faced by ethnic minorities including the introduction of mandatory reporting of ethnicity pay data. At that time the UK Government expressed a preference for a voluntary approach to ethnicity pay reporting.

However, following a later report revealing that very few employers collect ethnicity pay data, the Government has decided that mandatory ethnicity pay reporting is necessary to enable employers to … Continue Reading

UK Employment law changes April 2019

Despite Brexit dominating the headlines there are several key changes to employment law coming into force in April 2019.

  • Extension of itemised pay statements to workers, not just employees – 6 April 2019

 

Currently, only employees are required to be given an itemised pay statement. From 6 April the Employment Rights Act (Itemised Pay Statement) (Amendment) Order 2018 and the Employment Rights Act (Itemised Pay Statement) (Amendment) (No 2) Order 2018 are due to come into force which will extend this right to include workers.  In addition, employers will be required to itemise on payslips the number of hours … Continue Reading

What to expect in 2019

Following a Government-commissioned review of employment working practices in the UK which was published in 2017, a number of developments in employment law reform are expected over the coming months.

The Government published its latest proposals in December, covering a number of areas for change, some intended to improve the enforcement of employment rights, some to increase transparency and clarity of rights between employers and workers (including issues relating to employment status) and others to improve the rights of atypical workers. This post highlights some of the key areas for change.

Employment status

A key area for change is in … Continue Reading

Religious discrimination claim – whose religion?

The Employment Appeal Tribunal (EAT) has held that where an employer (or individuals on behalf of the employer) acts because of their own religion or belief, this may not lead to an employee bringing a successful claim for direct discrimination on grounds of religion or belief. The EAT upheld the employer’s appeal, overturning the Employment Tribunal decision.

The case involved a teacher at a nursery run in accordance with ultra-orthodox Jewish principles, who was dismissed after complaints made by parents who were aware that she was cohabiting with her partner. At a meeting, the headteacher and the nursery’s managing director … Continue Reading

No Deal arrangements for EU citizens

One of the many outstanding issues for immigration lawyers was how EU citizens would be able to enter the UK after 29 March 2019 in the event of a “no deal” scenario. Whilst a new immigration system is due to come into force in 2021, the situation remained unclear as to what would happen to any EU citizen seeking to enter the UK after the UK had left the EU in March in the event of a no deal.  On 28 January 2019, the Home Secretary, Sajid Javid set out the provisions for EU citizens coming to the UK after … Continue Reading

Settled status for EU citizens

The EU Settlement Scheme, which processes applications of EU citizens living in the UK to allow them to remain in the UK after Brexit, has gone live.

From 21 January 2019 a public test phase will run for individuals who are resident EU citizens (with a valid EU passport) or non-EU citizen family members of EU citizens (with a biometric residence card) . The Scheme will open fully on 30 March 2019.

The EU Settlement Scheme applies to EU citizens already in the UK prior to 29 March 2019, or those who enter before the end of the transition period … Continue Reading

The immigration white paper – what will it mean for the UK’s future immigration system?

The UK Government has now published the White Paper on the future immigration system for the UK after it leaves the EU. It has confirmed, following many of the recommendations by the Migration Advisory Committee (MAC), that it will adopt a new single skills-based immigration system from 1 January 2021.  The new system will put an end to the EU free movement of people regime and will be a system where it is “a worker’s skills that matter, not which country they come from” and there is a focus on “quality” rather than “… Continue Reading

Claim by track cyclist Jess Varnish to be heard in the employment tribunal next week

Track cyclist Jess Varnish brought a claim of sex discrimination against British Cycling and UK Sport last year, following her removal from the Great Britain Olympic team just months before the 2016 Rio Games.

In the UK, protection from discrimination in the workplace is governed by the Equality Act 2010 (the Act). However, in order to be able to bring a claim, an individual must fall within the categories of protected persons under the Act.

Who is protected?

The first category of those protected under the Act are those in “employment” which has a wider meaning for the purposes of … Continue Reading

Employees on Long term sickness – when can an employer dismiss?

The Employment Appeal Tribunal (EAT) has recently confirmed that employers should take care when dismissing an employee who is entitled to participate in a permanent health insurance (PHI) scheme and is absent from work by reason of long term ill health. It held that there is an implied term that an employer will not dismiss an employee for incapacity if that would prevent the employee being entitled to long term disability benefits.

Where an employee is absent due to ill health then on termination of employment, the employer may face a claim for unfair dismissal and for disability discrimination.   Capability … Continue Reading

Brexit – English Soccer and dispute over foreign players

Another interesting and unforeseen consequence of Brexit is the power struggle that has been triggered between the Premier League and the FA in relation to post Brexit quotas for “home grown” players and the visa requirements for overseas players.

The FA is seeking to use Brexit as an opportunity to boost the longer term health of the national team by reducing the number of overseas players in each squad. This is not proving popular with the Premier League which takes the view that a continued influx of high profile international players adds to the global appeal of the league.

Following … Continue Reading

Do managers typically think of personal liability when making decisions to dismiss? They perhaps should

Directors and senior managers and their employers should consider the recent Court of Appeal decision in the Osipov whistleblowing case very carefully. Briefly, by way of scene-setting, Osipov had made a series of protected disclosures and he was ultimately dismissed as CEO of the employer company pursuant to a decision of two non-executive directors (NEDS) of the company. He brought a  whistleblowing claim (for approx. £1.7m) against the company.  He also added the two NEDS as respondents on the basis that they had subjected him to a detriment for (amongst other allegations) their part in the decision to dismiss him.… Continue Reading

Vicarious liability in the data breach context – bad news for UK employers

The Court of Appeal has upheld a decision of the High Court holding that an employer can be vicariously liable for data breaches caused by the actions of an employee, even where the employee’s actions were specifically intended to harm the employer. This decision is significant as it means a company can be held liable to compensate affected data subjects for loss caused by a data breach, even where the company has committed no wrongdoing and regardless of the employee’s motive.

In reaching this conclusion, the Court of Appeal confirmed that the Data Protection Act 1998 (DPA) does … Continue Reading

Direct Discrimination – how far can this go?

The recent case of Lee v Ashers Baking Company Limited and Others has hit the headlines in looking at what amounts to direct discrimination in terms of the provision of services to individuals.  What effect does this case have on discrimination in the employment field?

The case involved a family owned bakery, whose owners strict religious beliefs include opposition to gay marriage. They were asked to provide a customised cake with a photograph and wording stating “Support Gay Marriage”.  They cancelled the order due to their religious belief and provided a refund to the customer.

The individual brought a discrimination … Continue Reading

Employee rights on bereavement

In the UK, compassionate leave for employees in the event of bereavement has until now been dealt with by way of employment policies. There have been no specific legal rights on bereavement, whether in relation to the death of a family member or anyone else close to the employee. Any rights which they have to leave and/or pay in these circumstances are dependent on what is agreed with their employer, either by way of contractual rights or rights set out in a workplace policy.

However, following a period of consultation, the Parental Bereavement (Leave and Pay) Act 2018, which for … Continue Reading

Corporate Governance Reform – new disclosure requirements

Following on from it proposals for reform, which we reported on at the end of last year (Corporate Governance Proposals), the UK Government has now published draft regulations, (the draft Companies (Miscellaneous Reporting) Regulations 2018). The Draft Regulations will implement some of the proposals, in particular in relation to holding larger companies to account for the salaries they pay and to consider employee representation. The draft regulations include the following new requirements:

  • Publication of CEO’s pay ratio: UK quoted companies with more than 250 UK employees will be required to publish the ratio of their CEO’s total remuneration
Continue Reading

National Minimum Wage – “On Call”, “Sleep In” employees

The Court of Appeal has held that carers who carry out overnight “sleep-in” shifts are not entitled to be paid the National Minimum Wage (NMW) for the full duration of the shift, only when they are actually performing work.

The UK National Minimum Wage Act 1998 creates the right for workers in the UK to be paid an hourly rate of remuneration for work carried out. The National Minimum Wage Regulations 2015 (the 2015 Regulations) (and its predecessor the National Minimum Wage Regulations 1999 (the 1999 Regulations ))  contain complex provisions relating to how employers should calculate the number of … Continue Reading

Overtime and holiday pay – non-guaranteed and voluntary overtime

The Employment Appeal Tribunal (EAT) in the UK has recently considered whether voluntary as well as non-guaranteed overtime should be taken into account in calculating the amount of holiday pay. The question arose both under the terms and conditions of the claimants’ employment, but also pursuant to the EU Working Time Directive (No.2003/88) (WTD).

The case involved a group of employees in an NHS trust, who brought claims for unlawful deductions from wages, relating to two types of overtime – non-guaranteed overtime and voluntary overtime. Non-guaranteed overtime related to payments, where, at the end of a shift, one of the … Continue Reading

“High heels and workplace dress codes” – the UK Government Equalities Office publishes guidance

In December 2015, an agency worker arrived to work as a receptionist and was sent home without pay for failure to wear high heels in accordance with the agency’s dress code. The story attracted widespread media attention, and led to an enquiry by a House of Commons Committee whose report was published in January 2017. As a result, the Government promised to update its guidance on dress codes during 2017, but the Government Equalities Office (GEO) has only just published the long-awaited guidance.

“High heels and workplace dress codes”

The enquiry resulted in publication of the report “High heels Continue Reading

Appointing Contractors through a personal service company – employment and tax implications

Following on from the recent cases on employment status there has been much discussion regarding how individuals should be appointed. Whilst some commentary has suggested that companies should consider appointing their contractors through Personal Service Companies (PSC’s), is this an ideal solution?

Currently, where a private sector employer appoints a contractor who operates through a PSC, the client company does not have to deduct income tax or NICs under PAYE from payments made to the PSC or pay employer’s NICS. The individual typically receives a small salary and dividends from the PSC and it is up to the individual to … Continue Reading

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