Webinar
UK Employment Law Update – April 2016
© Copyright 2014 by K&L Gates LLP. All rights reserved.
Meet the team
Paul Callegari
Partner, Practice Group Coordinator
T +44 (0)20 7360 8194
paul.callegari@klgates.com
Emma Thomas
Senior Associate
T +44 (0)20 7360 8339
emma.thomas@klgates.com
Deirdre Treacy
Associate
T +44 (0)20 7360 8234
Deirdre.treacy@klgates.com
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Agenda
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3.
3.
In case you missed it…
Recent cases - round up
In the pipeline
Q&A
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In case you missed it…
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European Parliament has been busy!
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Shared Parental Leave survey
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“Tiny proportion” of men opting for SPL
Employers implement “National Living Wage”…
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EU Data Protection Regulation agreed
New Trade Secrets Directive agreed
…and some accused of reducing benefits to compensate!
Unfair dismissal compensatory cap increased to
£78,962
A limit on a “week’s pay” increased to £479
No increases to maternity, paternity, adoption, shared
parental or statutory sick pay
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Recent cases – round up (cont.)
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Whistleblowing: complaint about cramped working
conditions could be “protected disclosure” – Morgan v
Royal Mencap Society (EAT)
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Reminder of public interest test – small group apparently
sufficient
M complained on two occasions that cramped working area
was adversely affecting her injured knee
Also sent an email complaining that her post fracture patella
injury and lower back were being strained by cramped
working conditions
M believed disclosures to be in public interest as Mencap is a
charity, financially supported by public, and public would be
interested to know about how it treated its employees
ET struck out claim without hearing evidence: her disclosures
were not a matter of public interest, nor could M reasonably
believe that they were
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Recent cases – round up (cont.)
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M appealed
EAT upheld appeal:
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Strike out without hearing oral evidence is a “high threshold”
Question to be determined is not whether the disclosure is in the public
interest, but whether M believed that it was and whether it was
reasonable for her to believe that
M’s assertions that others affected by working conditions was not
tested by evidence
Evidence could potentially show that her complaints met public interest
test; therefore case sent back to ET
Change in law has had little effect?
Court of Appeal due to rule in October
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Recent cases – round up (cont.)
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Whistleblowing: relationship between “information”
and “allegations” – Kilraine v London Borough of
Wandsworth (EAT)
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EAT previously ruled that protection only applies where
disclosure involves “information” – facts - rather than just a
concern or allegation. Can be both, but must include
information.
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“the wards have not been cleaned for two weeks” = information
“you are in breach of health and safety requirements” = allegation
K employed by LBW as Education Achievement Project
Manager.
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Recent cases – round up (cont.)
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Accused LBW in a letter of failing in its legal obligations
towards her in respect of bullying and harassment and, in
particular, “numerous incidents of inappropriate behaviour
towards me”
EAT: this was an allegation, not a disclosure of information
K also stated in an email that her line manager had failed to
support her when she had raised a safeguarding issue.
EAT: this contained some information but no breach of any
legal duty
Claim therefore rejected
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Recent cases – round up (cont.)
 Contacting employees on sick leave – beware! Private
Medicine Intermediaries v Hodkinson (EAT)
 H disabled
 Returned to work in September 2013. PMI implemented some,
but not all, of OH’s recommended adjustments
 October 2013 – H off sick with work-related depression and
anxiety. Believed that bullied by line manager and MD and fit
note referred to it
 CEO wrote to H asking if wanted to raise a grievance. H
responded that too upset and unwell to communicate properly
 CEO wrote back – referred to 6 areas of concern (“November
letter”)
 H resigned and claimed constructive dismissal and harassment
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Recent cases – round up (cont.)
 ET:
 H not bullied or intimidated. Not credible, over-sensitive and prone to
exaggerate
 November letter not part of campaign to drive out, contained genuine
concerns and had all been brought to her attention previously, BUT
 PMI should reasonably have known that letter would cause distress
 Constructive dismissal claim upheld and failure to implement all OH
recommendations was discrimination arising from disability
 EAT:
 Upheld constructive dismissal claim. November letter may have contained
genuine concerns but knew H was ill, issues raised were not serious and
didn’t need to be dealt with at that time
 Rejected harassment and discrimination arising from disability claims
 Shows difficulties of dealing with absent employee
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Recent cases – round up (cont.)
 Knowledge of disability – Gallop v Newport City Council
(EAT)
 Claim involved direct discrimination – previous cases established
that ET should focus on thought processes and motivation of
decision maker. Knowledge cannot be implied – did he/she know
of and was he/she influenced by disability?
 OH aware of stress-related illness but did not consider G to be
disabled
 Manager – no actual knowledge of G’s disability and no
evidence that it motivated his decision
 NB: situation different to where reasonable adjustments are
concerned – imputed knowledge can apply
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Recent cases – round up (cont.)
 High Court entitled to interfere with employee’s
entitlement to commission – Hills v Niksun Inc (Court of
Appeal)
 Mr Hills was employed by Niksun Inc as its UK sales manager
 After a sale of security software, he was promised he would be
“looked after” in respect of commission and receive the “lion’s
share”
 Only 48% of the commission was allocated to the UK office
 Mr Hills brought a claim for breach of contract, alleging that
Niksun had failed to exercise its discretion to allocate
commission rationally
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Recent cases – round up (cont.)
 The High Court decided that the allocation of commission was
not fair and reasonable
 Niksun appealed the decision arguing that the High Court should
not have interfered in its exercise of discretion
 The Court of Appeal dismissed the appeal:
 Following Braganza v BP Shipping Ltd and another, once there were
grounds for thinking Niksun’s decision was unreasonable, the evidential
burden shifted to Niksun to show its decision was reasonable
 Niksun failed to provide evidence about the way the decision had been taken
and the court could not assume the decision had been rational
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Recent cases – round up (cont.)
 Childcare vouchers provided via salary sacrifice deemed
“remuneration” – Peninsular Business Services Limited v
Donaldson (EAT)
 EAT held that childcare vouchers provided under a salary sacrifice
scheme are part of an employee’s “remuneration” and therefore do
not need to be provided during maternity leave
 Where vouchers are provided on top of salary, without salary
sacrifice, they will be count as a non-cash benefit, which must
continue during maternity leave
 EAT held that the current HMRC guidance is incorrect and that:
“in reality [it is] not a sacrifice but a diversion of salary, which the
employee has earned but which is redirected prior to it being placed in
the employee’s pay packet, in order to purchase vouchers”
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Recent cases – round up (cont.)
 No age discrimination in refusal to extend PHI cover
beyond the age of 60 – Smith v Gartner UK Limited
(EAT)
 Claim for unlawful deductions from wages and age discrimination by
employee whose PHI payments ceased on the grounds that the
employee hit the company’s historic compulsory retirement age of 60,
which still applied to the PHI scheme
 ET and EAT stuck claims out and held:
 The contract and Guidance made it clear the payments to the employee were
subject to the terms of the scheme applicable when she started claiming in 2003,
which confirmed that payments would cease at 60
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Recent cases – round up (cont.)
 The company’s contractual obligation was to take insurance out,
not to make payments. The payments were made by the insurer
to the employer therefore failure to make payments to the
employee could not be an act of age discrimination by the
employer
 As the employee was not in active employment when the policy’s
retirement age was increased to 65, she was not eligible to claim
under the new terms of the scheme
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Recent cases – round up (cont.)
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Dismissal due to employer’s genuine and reasonable
belief that the employee was not permitted to work in the
UK was fair- Nayak v Royal Mail Limited (EAT)
 Employer dismissed employee on the grounds that it believed the
employee no longer had the right to work in the UK
 Employer wrote to employee and the Home Office over a period of
several years in order to get an update on a Tier 4 visa application that
had been pending and warned the employee that he may be dismissed
if he failed to update them
 ET and EAT held that it was reasonable for the employer to dismiss the
employee on the grounds that it had a reasonable belief that the
employee no longer had the right to work in the UK
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Recent cases – round up (cont.)
 EAT held that an employer’s genuine belief that an employee did not
have the right to work can constitute “some other substantial reason”
(SOSR) for dismissal and actual knowledge of a contravention of a
statutory requirement is not required for a SOSR dismissal
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In the pipeline
 Further appeals due in relation to holiday pay cases,
regarding commission (Lock) and series of deductions point
(Bear Scotland)
 “Public interest” requirement for whistleblowing – due in
October
 Government intends to reform the current law on trade union
strikes:
 Employees providing essential public services will only be able to take
lawful industrial action if they have the backing of at least 40% of its
members, rather than just 50% of the vote
 Employers can use agency staff to cover for striking employees. This
will potentially make it less likely that employers will negotiate with trade
unions
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In the pipeline
 Gender pay gap reporting is due to come into force in
October 2016, with the first reports published in April
2018
 Government has announced that it is planning to
extend shared parental leave to include grandparents,
which the government aims to bring in by 2018.
Consultation for this will begin this year
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Q&A
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Webinar
UK Employment Law Update – April 2016
© Copyright 2014 by K&L Gates LLP. All rights reserved.