Webinar UK Employment Law Update – October 2015 Paul Callegari, Partner and Practice Group Co-Ordinator – Labor, Employment and Workplace Safety © Copyright 2014 by K&L Gates LLP. All rights reserved. Presenters Paul Callegari Partner and Practice Group Co-Ordinator - Labor, Employment and Workplace Safety London T +44 (0)20 7360 8194 F +44 (0)20 7648 6368 paul.callegari@klgates.com Emma Thomas Senior Associate - Labor, Employment and Workplace Safety London T +44 (0)20 7360 8339 F +44 (0)20 7648 9001 emma.thomas@klgates.com klgates.com 2 Agenda 1. In case you missed it… 2. Feature (1): the Modern Slavery Act 2015 3. Feature (2): Unsafe Harbor – consequences of the ECJ’s decision in Schrems Noirin McFadden, Associate 4. Q&A klgates.com 3 In case you missed it… Whistleblowing and the “public interest” test – Underwood v. Wincanton plc (EAT) recent amendment to legislation limited whistleblowing protection to cases where disclosure is in “public interest” Chesterton Global v. Nurmohamed: test met by group of employees raising a matter specific to their employment (EAT) U: dismissed in June 2014. Sought to rely on letter written on 22 November 2013 by U and 3 other drivers complaining about overtime allocation. Vague suggestion that overtime withheld from “overly scrupulous” drivers in relation to vehicle safety. klgates.com 4 In case you missed it…(cont.) W plc: no whistleblowing as no public interest. ET agreed (but decision given before Chesterton) EAT: agrees with Chesterton – “public interest” test can be met by small group of employees employed by same employer disputes about terms and conditions of employment could constitute matters “in the public interest” ET decision overturned and claim allowed to proceed klgates.com 5 In case you missed it…(cont.) PRA and FCA announce new rules on whistleblowing in force 7 September 2016 apply to “deposit-takers” (i.e. banks) with over £250 million in assets, PRA–designated investment firms and certain insurers. “Non-binding guidance” for all other firms. klgates.com 6 In case you missed it…(cont.) affected firms need to: appoint a senior manager as a “whistleblowers’ champion” establish internal whistleblowing channels and inform staff inform staff of PRA and FCA whistleblowing services and protection ensure wording in employment and settlement agreements does not deter whistleblowing; and present a report on whistleblowing to board at least annually klgates.com 7 In case you missed it…(cont.) Employees temporarily laid off may still transfer under TUPE – Inex Home Improvements Ltd v. Hodgkins & Ors (EAT) Thomas Vale Construction (TVC) sub-contracted decorating work to Inex in tranches Inex employed claimants as painters and decorators Nov/Dec 2012 – Inex completed works order. Next order anticipated in January 2013 – no work for claimants in interim period so temporarily laid off January 2013 – TV transferred work to another decorator klgates.com 8 In case you missed it…(cont.) ET: claimants no longer an “organised grouping of employees”, therefore no service provision change EAT: disagreed temporary absence or cessation of work doesn’t deprive employees of organised grouping status no requirement for employees to be actually engaged in activities immediately before transfer EAT closes potentially significant loophole! klgates.com 9 In case you missed it…(cont.) In brief Chief Executive of Sports Direct charged with criminal offence of failing to notify Government of redundancies Shared parental leave and pay to be extended to working grandparents klgates.com 10 21 October 2015 The Modern Slavery Act 2015 Emma Thomas © Copyright 2014 by K&L Gates LLP. All rights reserved. MODERN SLAVERY ACT 2015 Consolidates offences relating to trafficking and slavery Section 54 requires large businesses to publically state each year the action that they have taken to ensure the company and its supply chains are free from slavery Although most of the Act is already in force, Section 54 will not come into force until two parliamentary debates have been held, which will not happen until late October No criminal or financial penalties for non-compliance and the obligation to produce a statement can only be enforced by an injunction in the civil courts klgates.com 12 Commercial Organisations The Act will apply to organisations that: supply goods and/or services; have a minimum global turnover of £36 million per year; and carry out business or part of a business in the UK The turnover of subsidiary undertakings will be included when calculating the organisation’s turnover Subsidiaries must produce their own statement if their turnover exceeds £36 million klgates.com 13 Content of Statement The statement must include either a statement of the steps taken by the organisation during the financial year to ensure slavery and/or human trafficking is not taking place in its business or supply chains or that the organisation has taken no such steps. The statement may also include information about: the organisation’s structure, business and its supply chains; its policies in relation to slavery and/or human trafficking; its due diligence processes in relation to slavery and human trafficking; the parts of the business and supply chains where there is a risk of slavery and human trafficking and the steps it has taken to assess and manage that risk; klgates.com 14 Content of Statement…(cont.) its effectiveness in ensuring that slavery and human trafficking is not taking place, measured against performance indicators that the organisation considers appropriate; and training available to staff There is no prescribed form or length requirement for the statement Transitional arrangements will be introduced for organisations whose financial year ends close to the introduction of Section 54 Guidance is due to be published providing further information on what should be included in the statement klgates.com 15 Approval and Publication of the Statement The board of directors must approve the statement, which will need to be signed by a director If the organisation has a website, the statement should be published on it. A link to the statement should be in a prominent place on the homepage If the organisation does not have a website, it must provide a copy of the statement to anyone who makes a written request within 30 days klgates.com 16 Practical Steps Start reviewing the steps taken by the organisation and its supply chains (if any) to ensure that slavery and human trafficking is not taking place Update the organisation’s corporate social responsibility policy so that it clearly addresses the issue Update template agreements with suppliers to address slavery and human trafficking Carry out risk assessments of high risk areas of the business and/or supply chains Consider what steps can be taken to overcome or reduce the risk of slavery and human trafficking Train staff on their obligations klgates.com 17 21 October 2015 Update on Safe Harbor Nóirín McFadden © Copyright 2014 by K&L Gates LLP. All rights reserved. PRESENTER Nóirín McFadden Associate T +44 (0)20 7360 8135 F +44 (0)20 7648 9001 noirin.mcfadden@klgates.com klgates.com 19 THE SCHREMS CASE (C-362/14) Schrems complained to Irish DPA regarding Snowden disclosures Irish DPA refused to review Facebook US transfers Schrems took DPA to court Reference from Irish High Court to CJEU CJEU declared US-EU Safe Harbor invalid klgates.com 20 SCHREMS: CJEU FINDINGS US Safe Harbor does not provide “adequate level of protection”: National security, public interest or law enforcement requirements have primacy over safe harbor principles – US government has access without limits No legal protection for data subjects – cannot access administrative or judicial redress for breaches of safe harbor principles (FTC only for commercial disputes) klgates.com 21 IMPACT ON COMPANIES US companies: If safe harbor registered – need to consider another means of accepting EU data transfers EU companies: Regulatory risk to continue sending data to US safe harbor registered recipients Consider other means: Data transfer agreements Consent (but caution in employment context) Binding corporate rules klgates.com 22 REGULATORS’ RESPONSE UK ICO: Consider other means of transferring data to US Working with counterparts on guidance Anticipating replacement of Safe Harbor Article 29 Working Party: Recommend other means of transferring data Continuing to analyse impact of judgement Individual regulators may act, e.g. on complaints If no EU-US solution by end January 2016, expect to take more enforcement action klgates.com 23 Q&A klgates.com 24 Webinar UK Employment Law Update – October 2015 Paul Callegari, Partner and Practice Group Co-Ordinator – Labor, Employment and Workplace Safety © Copyright 2014 by K&L Gates LLP. All rights reserved.