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
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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
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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.
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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
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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.
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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
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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
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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!
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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
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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
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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
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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;
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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
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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
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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
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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
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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
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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)
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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
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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
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Q&A
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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.