Be Aware UK

Supreme Court holds that district judge is not a worker for the purposes of whistle-blowing protection but is entitled to bring a claim

17 October 2019 17 October 2019 / worker status / Employment

The Supreme Court has decided unanimously in Gilham v Ministry of Justice that a district judge is not a worker for the purpose of the protection given to whistle-blowers under the Employment Rights Act 1996 (ERA), but that she could nevertheless bring a whistle-blowing claim. Under s.230(3) of the ERA, a worker is defined as “an individual who has entered into or works under… (a) a contract of employment or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or …

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Global Climate action protests – how can employers strike the right balance?

17 September 2019 17 September 2019 / climate change, collective employee relations, industrial action, strikes / Employment

On 20 and 27 September 2019, millions of people across the globe are expected to take part in strikes in an effort to ask politicians to increase action on the climate crisis. The proposed strike action has been called by Global Climate Strike, an environmental group born out of the international school strike movement inspired by the young Swedish activist, Greta Thunberg and there have been calls for employees to leave their workplaces to join other strikers in voicing their concerns. For some companies, the planned protests are being viewed as supportive of their values and branding, and as such they …

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Holiday pay: 12.07% formula should not be used for workers with no normal working hours

7 August 2019 7 August 2019 / casual workers, employment status, holiday, holiday pay / Employment

In a decision which potentially significantly impacts employers who engage workers under arrangements which do not have set normal working hours, the Court of Appeal has confirmed that holiday pay should not be calculated on the basis of 12.07% of hours worked but instead should be based on an average of earnings in the 12 weeks before leave is taken. As the crux of this case was whether workers who do not work throughout the year should receive less holiday entitlement and holiday pay than those who do, the decision will particularly affect businesses which engage workers who work less …

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Be Aware UK: Response to consultation on extending workplace protection for pregnant women and new parents

23 July 2019 23 July 2019 / discrimination, employment law reform, maternity, pregnancy / Employment

The government’s last-minute flurry of legislative activity looks set to continue right up to the parliamentary summer recess; today the government has issued its response to consultation on extending workplace protection for pregnant women and new parents as part of the Good Work Plan. Research by the Department for Business, Energy and Industrial Strategy (BEIS) and the Equality and Human Rights Commission (EHRC) in 2016 indicated that over 75% of new mothers had had a negative or possibly discriminatory experience during pregnancy or maternity leave or on their return to work. The 2017 Taylor Review of Modern Working Practices recommended …

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Government outlines its proposals for reforms to confidentiality clauses (NDAs)

22 July 2019 22 July 2019 / confidentiality, contracts of employment, employment particulars, NDA, settlement, termination / Employment

The spotlight is continuing to shine brightly on the issue of sexual harassment in the workplace, and employers need to be alive to the government’s proposals for reform which, after a fairly slow start, are now coming thick and fast. The trend towards increasing protection for employees is moving ever upwards, and employers need to ensure they keep pace with the developments, particularly given the potentially criminal implications relating to sexual harassment offences, and the impact on entering into future settlement agreements. Earlier this month (as outlined in a previous Be Aware alert), the Government Equalities Office launched a consultation …

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Government consults on measures to tackle one-sided flexibility in the labour market and on parental leave

19 July 2019 19 July 2019 / Employment

One-sided flexibility The government has launched a further consultation as part of the Good Work Plan seeking views on proposals to address the problem identified by the Low Pay Commission (LPC) of one-sided flexibility in the labour market. One of the recommendations of the Taylor Review of Modern Working Practices (July 2017) was that ‘the government should ask the LPC to consider the design and impacts of the introduction of a higher NMW (National Minimum Wage) rate for hours that are not guaranteed as part of the contract’ as a means to address the issue of one-sided flexibility. The government …

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IR35: Government publishes draft legislation reforming private sector off-payroll working

17 July 2019 17 July 2019 / Employment, Reform, Tax

On 11 July 2019 the government published draft legislation (Draft Legislation) together with a summary of responses (Response Paper) to the policy paper and consultation document issued in March 2019 regarding proposed changes to the off-payroll working rules, commonly referred to as the IR35 regime, which apply to the private sector. The private sector IR35 regime applies where an individual provides their services (directly or indirectly) through a personal service company (a PSC) to another person or entity (an End-User) in circumstances where, had the individual provided their services directly to the End-User rather than through their PSC, they would …

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Government consults on reducing ill health-related job loss and on labour market enforcement body

15 July 2019 17 July 2019 / ill health, mental health, reasonable adjustments, wellbeing / Employment

The Government has published two consultation papers this week which are of interest to UK employers. The first paper – Health is everyone’s business – sets out the Government’s proposals to reduce ill health-related job loss. The second paper – part of the Good Work Plan – proposes the establishment of a new single enforcement body for employment rights. Health is everyone’s business The issue of employee wellbeing and good physical and mental health is of paramount importance in the modern workplace. In recent times, following on from the Stevenson/Farmer Review of Mental Health and Employers, the government has committed …

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Supreme Court decision should prompt employers to review restrictive covenants

12 July 2019 22 July 2019 / Employment

For employers, the departure of a key employee from the business to a competitor can present real concerns about the future preservation of critical business assets such as clients, customers, suppliers and employees. In this situation, the spotlight will shine brightly on the terms of any restrictive covenants which have been included in the employee’s contract of employment. All too often, when the employment relationship is first entered into and the parties are on amicable terms, very little attention is given to the wording of post-termination restrictions. However, on an employee’s departure the terms are suddenly brought into sharp focus …

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Employers need to be alive to their responsibilities and potential liabilities as the government’s focus on workplace sexual harassment continues

11 July 2019 11 July 2019 / consultation, employ, sexual harassment / Employment

In a move which continues to demonstrate the government’s commitment to tackling sexual harassment in the workplace, and reinforces the importance which employers need to attach to this issue, the Government Equalities Office has published a consultation paper today which explores the existing protections for workers and how these could potentially be strengthened. This step is the latest in a series of high profile inquiries into workplace sexual harassment, and follows the government’s earlier consultation on Measures to prevent the misuse of confidentiality clauses in situations of workplace harassment or discrimination (for which a response is still awaited), plus a …

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Court of Appeal overturns EAT decision in Kostal case on unlawful inducements (s.145B TULRCA)

13 June 2019 22 July 2019 / collective bargaining, s.145B, trade union recognition, trade unions / Employment

The Court of Appeal has handed down judgment in Kostal UK Ltd v Dunkley and others, a case concerning the scope of s.145B of TULR(C)A. In a decision which will be welcomed by employers who recognise a trade union, the Court of Appeal allowed Kostal’s appeal and overturned the decisions of the EAT and ET. Section 145B is complex but essentially prohibits employers from making offers directly to union members to change their terms and conditions in order to avoid collective bargaining (ie if the employer’s “sole or main purpose” in making the offer is to achieve a “prohibited result”). …

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Court of Appeal confirms non-guaranteed and voluntary overtime are in scope for holiday pay calculations

11 June 2019 18 June 2019 / holiday, holiday pay / Employment

This week, in the latest development on holiday pay, the Court of Appeal gave its judgment in East of England Ambulance Service NHS Trust v Flowers and confirmed that both non-guaranteed and voluntary overtime are in scope for inclusion in holiday pay calculations in respect of the 4 weeks’ Working Time Directive holiday entitlement, provided that the overtime is broadly regular and predictable. There is no requirement that the overtime is compulsory under the contract of employment. In giving its judgment, the Court of Appeal gave extremely short shrift to the ECJ’s comments in Hein v Albert Holzkamm GmbH & …

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Pay during shared parental leave: no sex discrimination where pay rates differ

26 May 2019 18 June 2019 / Employment

The Court of Appeal has given its judgment in the combined cases of Hextall v Leicestershire Police and Capita v Ali and another. The Court found that different rates of pay for mothers on maternity leave and fathers on shared parental leave is not unlawful sex discrimination – it is not direct, nor indirect discrimination, nor does it breach the equal pay requirements. The decision reaffirms the purpose of maternity leave as for the protection of the mother’s health during pregnancy and thereafter and also for the protection of the special relationship between mother and child during the period following …

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Mental Health Awareness Week 2019: Workplace Wellbeing

14 May 2019 18 June 2019 / mental health / Employment

Yesterday saw the start of the UK’s 2019 mental health awareness week. Many employers will use this as an opportunity to launch new workplace wellbeing schemes or to remind employees of the support they already provide, and to encourage staff to talk openly about their mental health. But do these initiatives actually make a difference? Recognition of and action on the impact of mental ill health in the workplace has, without doubt, progressed in recent years. However, statistics suggest that stress at work remains a growing problem. According to the TUC, in 2017/18 in the UK 15.4 million working days …

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European Parliament approves law on more transparent and predictable employment for gig and other workers

18 April 2019 18 June 2019 / employment law reforms, EU law, worker status / Employment

European Parliament approves law on more transparent and predictable employment for gig and other workers On 16 April the European Parliament voted to approve the Transparent and Predictable Working Conditions Directive, which is aimed at strengthening the rights of workers and improving working conditions by promoting more transparent and predictable employment whilst ensuring labour market adaptability. The Directive applies to workers in casual or short-term employment, on-demand workers, intermittent workers, voucher-based workers, platform workers, paid trainees and apprentices, provided they work 3 hours per week and 12 hours per 4 weeks on average. Genuinely self-employed persons should not fall within …

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