This is a roundup of all the interesting articles we’ve seen recently that you might enjoy too. It’s not meant to be exhaustive and no endorsement from SEE is implied. The links will take you to external websites over which SEE has no control.
Case Law Roundup
10 October 2018
Accrual of Annual Leave during Parental Leave – Tribunalul Botosani v Dicu, European Court of Justice.
The ECJ has ruled on a Romanian case that the interaction between the Working Time Directive and the Parental Leave Directive does not give rise to the right to accrue annual leave while taking a period of parental leave. In most cases the right to annual leave presupposes that the worker is actually working. However, there are some situations where this presupposition doesn’t apply, e.g. sickness and maternity leave. This is because the purpose of these types of absence is not ‘a break from work’. In the case of sickness, which is not foreseeable and beyond the control of the worker, the purpose is recovery. In the case of maternity leave, while foreseeable and to a certain extent within the control of the worker, the purpose is also recovery from pregnancy and childbirth and protects a special situation and relationship.
The Parental Leave Directive does enable Member States to define the status of the employment contract during periods of parental leave. In the UK our Parental Leave provision specifically state that a person on Ordinary Parental Leave or Shared Parental Leave is entitled to all the benefits of their contract, with the exception of remuneration, as if they were not on leave. Therefore, in the UK employees on Parental Leave continue to accrue annual leave.
Discrimination – Sexual Orientation or Political Belief – Lee v Asher Baking Company Ltd and Others
After a four year battle the Supreme Court has ruled in favour of the bakery stating that the refusal to bake a cake bearing the slogan ‘Support Gay Marriage’ was not based on the sexual orientation of the potential client but was in fact because they did not believe in the sentiment expressed in the message. It also determined that there was no discrimination on the grounds of political belief. Articles 9 and 10 of the European Convention on Human Rights protects the right not to be forced to express a political opinion in which you do not believe and infringement of this right could not be justified by an obligation to supply a good or service, in this case a cake.
Unfair Dismissal – Holding a Disciplinary Hearing without an employee’s chosen representative – Talon Engineering Ltd v Smith EAT/0236/17
Mrs Smith (S) was subject to disciplinary action following allegations that she had made inappropriate and offensive remarks about colleagues. S was suspended during the investigation and was invited to a disciplinary hearing to take place on 5 September, which was postponed because S was ill and then on annual leave. The hearing was rearranged for 29 September but her chosen companion was not available. The companion wrote to the employer offering a number of alternative dates; 10, 13 or 18 October. Talon refused to accept the postponement as they had met their legal obligation under S10 of the Employment Relations Act 1999 as they had already postponed the hearing once and while the companion had offered alternative dates as required under S10, these where not within 5 days of the 29 September hearing date. S refused to attend the hearing without her companion and so Talon held the hearing in her absence and dismissed S.
The ET ruled in S’s favour stating that the failure to postpone the hearing to allow the companion to attend had made?the dismissal unfair but reduced her award by 30% as the evidence supported the allegations of misconduct that resulted in her dismissal (she had contributed to the dismissal) and in recognition of the fact that the outcome of the hearing would likely still have been dismissal even if the companion had been present. The EAT confirmed the ET’s ruling and stated that the case looked at two separate and distinct rights – the right to be accompanied and the right to a fair and reasonable process. While Talon had technically complied with the rules around the right to be accompanied, it had failed to follow a fair and reasonable process to dismiss by failing to agree to a short delay in the hearing.
It is worth noting that the proposed delay was a matter of days and the courts thought this was not an unreasonable delay. Had S or her companion not provided alternative dates or requested significantly later dates, Talon’s refusal may have been justified.
Pensions protections for local government workers
The Government has launched a consultation on reforms to ensure local government workers whose roles are compulsorily transferred to independent providers, retain the right to remain in the Local Government Pension Scheme. This ‘New Fair Deal’ is long awaited and should make it much easier for non-local government employers to become employers within the LGPS to ensure employee who are or who previously transferred out of Local Government where the contract is being retendered.
Preparing for Brexit
With the date for exiting the European Union drawing ever closer, what should you be doing to prepare?
From an employment law perspective, very little of our body of law will change in the short to medium term. The UK Government has effectively adopted all EU Law into our UK statute books. Areas that may see change first could include holiday pay calculations and variation to terms and conditions following a TUPE transfer.
The area of biggest change will most certainly be immigration controls and the right to live and work in the UK. Here’s a few things you should be doing according to XpertHR.
- Understand the current right of free movement for EEA nationals under the Free Movement Directive.
- The Free Movement Directive (2004/38/EC), which allows European Economic Area (EEA) citizens and their dependants to live, work and study in any country within the EEA, will remain in force until the UK leaves the EU on 29 March 2019. The EU and UK have agreed that there will then be an implementation period lasting until 31 December 2020.
- Keep up to date with proposals made during the Brexit negotiations.
- The Government have a hub for all things Brexit to help employers.
- Carry out an audit of the workforce to establish which employees are EEA nationals in the UK or British nationals in the EEA.
- Use employee data to assess the potential impact of Brexit on the workforce.
- Identify potential skills gaps and labour shortages and plan how to address these.
- Communicate with the workforce on the potential impact of Brexit and support available to employees.
- Understand the options for EEA workers to obtain evidence of their immigration status in the UK.
- Consider providing assistance with applications for permanent residence cards and/or naturalisation.
- Review policies and documents to identify those that may need to be amended as a result of Brexit.
The LGA have launched a Brexit Information Hub
Eversheds: Comparison of Deal vs No Deal exit
Government Guidance: How to prepare for a ‘no deal’ Brexit – guidance notes on a wide variety of topic areas.
CIPD article: Effects on employment law and immigration policy
Government Toolkit: EU Settlement Scheme
Government Guidance: Workplace rights if there’s no Brexit deal
25 July 2018
24 July 2018
18 July 2018
17 July 2018
13 July 2018
03 August 2018
19 July 2018
18 July 2018
17 July 2018
16 July 2018
Equality & Diversity
Local Government Diversity – Chief Officers and Chief Executives
Green Park have published a report mapping the gender and ethno- cultural diversity of Chief Officer and Chief Executive roles in local authorities in England. The report finds that progress has been too slow in creating more inclusive senior leadership teams. It shows that women hold 39% of leadership roles in local government which is favourable compared to the FTSE 100. However, the proportion of BAME representation in local government is described as woeful, with 3.7% of senior leadership being from a BAME background and just 10 BAME Chief Executives across all councils. The report makes a number of recommendations for local authorities including ensuring recruitment panels are balanced, that everyone has the opportunity to progress and looking at how authorities are measuring diversity and whether they have targets to work towards.
25 July 2018
Modern Slavery in the Supply Chain
18 October marked Anti-Slavery Day. Councils are uniquely placed to be at the forefront of the fight against modern slavery in the supply chain. One in five councils have shown ethical leadership and voluntarily published a modern slavery transparency statement captured on the LGA’s new Council Transparency Statements Portal. The LGA has produced supplementary guidance to help your council identify, prevent and mitigate?the risk of modern slavery in your supply chains.