Employment law newsletter

Transcription

1 Employment law newsletter 1. Pensions - auto-enrolment minimum contribution timetable is extended The Government has announced that the auto-enrolment minimum contribution timetable will be extended. Minimum contribution requirements apply where an employer uses its own defined contribution pension scheme to comply with its auto-enrolment duties. These are being phased in over two transitional periods spanning six years. The dates of the next two scheduled increases in contribution levels have been extended by six months (to align with the start of the tax year). This is intended to simplify auto-enrolment for the smallest employers in particular. The new deadlines are as follows: Year - Employer s staging date to 5 April 2018 Minimum Employer Contribution - 1% Total contribution (including tax relief) - 2% 6 April 2018 to 5 April 2019 Minimum Employer Contribution - 2% Total contribution (including tax relief) - 5% From 6 April 2019 Minimum Employer Contribution - 3% Total contribution (including tax relief) - 8% 2. Holiday entitlement for part-time workers whose hours of work change The European Court of Justice (ECJ) has held that the holiday entitlement of a part-time worker has to be recalculated if their hours increase, in order to reflect the new working pattern. The Ms Greenfield was employed as a care worker by Care Bureau Ltd on a part time basis. She worked differing hours each week until August 2012 when she started working a pattern of 12 days on, two days off. She was refused annual leave by her employer who stated that she had already taken her full entitlement to annual leave prior to changing hours. Ms Greenfield brought a claim and the matter was referred to the ECJ. The ECJ held that when working patterns change, annual leave must be recalculated to reflect the entitlement going forward. However, when a part-time worker increases or decreases their hours, any statutory annual leave that has already accrued does not need to be recalculated retrospectively to take account of the increased or decreased working hours. Therefore, in this case, any leave taken in excess of the entitlement that applied under Ms Greenfield s previous working pattern should have been deducted from her leave going forward. The ECJ also confirmed that the calculation of leave entitlement is the same, regardless of whether employment has terminated or is continuing Paris Smith LLP 01

2 Employers should take care when calculating part time workers annual leave and ensure that any increase or decrease in working hours is reflected in any annual leave entitlement. Annual leave must be calculated separately for each period where the working pattern differs. Case reference: Greenfield v The Care Bureau Limited 3. New guidance on reservist leave The Ministry of Defence has published an employer toolkit providing guidance and support on all aspects of employing reservists. You can read it here. The toolkit sets out the rights and responsibilities of reservists and employers and the financial assistance available to both parties. It contains guidance for line managers on how to manage reservists and on managing requests for time off for reservist training. It also provides guidance on and template documents to be used when a reservist is mobilised, demobilised and returns to work. 4. Guidance on conducting workplace investigations ACAS has published new detailed guidance on conducting workplace investigations. You can read it here. The guidance applies to both disciplinary and grievance investigations. It explains how an organisation should prepare for an investigation, how an investigator should prepare, how an investigation meeting should be handled, how evidence should be gathered, how to write an investigation report and what should be done after the investigation has been completed. 5. Disparate treatment of employees The Employment Appeal Tribunal (EAT) has held that when considering issues of disparity of treatment between employees, the relevant question is whether the employer has acted reasonably towards the employee who has been dismissed, regardless of what sanction has been applied to any other employee. Mr Jones and Mr Battersby, who were both employed by MBNA Ltd, attended a work event at a racecourse. At one stage of the evening, Mr Jones put his arm around Mr Battersby s sister which led Mr Battersby to knee him in the leg. Mr Jones retaliated by punching Mr Battersby in the face. Mr Jones then left and went to a club. Mr Battersby waited outside and sent Mr Jones seven texts threatening him with physical violence but he did not carry out his threats. Both employees were found guilty of gross misconduct but whereas Mr Jones was dismissed for punching his colleague, Mr Battersby received a final written warning for sending text messages of a violent nature. He was not dismissed because his texts were an immediate response to Mr Jones punching him, i.e. he had been provoked. The company found that Mr Battersby kneeing Mr Jones in the leg had not been done with any force or aggression. Mr Jones brought an unfair dismissal claim. The Tribunal upheld his claim on the basis that both men had been provoked but only one had been dismissed and this disparity made the decision to dismiss unreasonable. The company appealed to the EAT. The EAT held that the Tribunal had wrongly focussed on Mr Battersby s treatment rather than focussing on whether the company had reached a reasonable decision in relation to Mr Jones. The EAT held that disparity of treatment will occasionally be relevant to the issue of reasonableness, but the circumstances of the employees being compared need to be truly parallel. In this case, the employees were not in truly parallel circumstances and therefore the decision to dismiss Mr Jones for physical violence could not be held to be unreasonable. The EAT also confirmed that, although provocation is not a defence, it is a mitigating factor to be considered by an employer. Employers should look at all the circumstances of a disciplinary matter very carefully, particularly when considering if employees are in parallel circumstances and 2015 Paris Smith LLP 02

3 should therefore be treated the same. However, employers also need to consider any mitigating factors before making the decision to dismiss and make sure they are acting within the range of reasonable responses. Case reference: MBNA Limited v Jones 6. Resignation should have been taken into account when deciding whether collective redundancy consultation obligations were triggered The European Court of Justice (ECJ) has held that a resignation following a unilateral substantial change in working conditions (namely reducing an employee s salary by 25%) was a redundancy under the European Collective Redundancies Directive (the Directive). The Directive requires employers to consult with employees regarding collective redundancies, which are defined as dismissals effected by the employer for one or more reasons not related to the individual workers concerned. In this Spanish case, the employer dismissed various employees for economic and production reasons. During the same period, an employee also resigned in response to the company s unilateral reduction of her salary by 25%. It was argued that this meant that the threshold for collective consultation had been reached and therefore the employer should have collectively consulted with all the dismissed employees. The ECJ held that the definition of redundancy in the Directive is wide enough to include resignations where an employer has unilaterally made significant changes to essential elements of an employee s contract for reasons not related to them as an individual and which cause them substantial detriment. The resignation in this case should therefore have been taken into account when considering whether the necessary threshold for collective consultation had been satisfied. It has been clear for a long time that the definition of redundancy for the purposes of collective consultation has a much wider meaning than redundancy for the purposes of statutory redundancy. Employers should be aware that changing employees terms through termination and re-engagement on new terms can lead to a requirement to carry out collective consultation. This case has confirmed that the wide definition of redundancy also encompasses resignations where the employer has unilaterally made significant and detrimental changes to essential elements of an employee s contract. Case reference: Pujante Rivera v Gestora Clubs Dir SL and another 7. No TUPE transfer occurred The Employment Appeal Tribunal (EAT) has held that no TUPE transfer occurred when an employee s employment was transferred from a sole employer to a group of companies which included the original employer. Mr Layton was employed by Martlet Homes Ltd. This company then joined a group of companies called the Hyde Group and became a subsidiary of Hyde Housing Association Ltd. During a subsequent restructure, Mr Layton was offered a position where he would be employed by the Hyde Group (i.e. he would be jointly and severally employed by all members of the group). Mr Layton objected to changes to his terms and conditions, particularly the loss of a bonus. The Hyde Group terminated Mr Layton s contract and offered him re-engagement on the new terms. Mr Layton accepted the new contract but claimed that he had been unfairly dismissed. The Tribunal had to consider if there had been a relevant transfer of Mr Layton s employment under TUPE. It held that there had been a relevant transfer from Martlet Ltd to Martlet Ltd and other members of the Hyde Group. The company appealed to the EAT. The EAT held that TUPE does not preclude the transfer of employment to multiple transferees, as long as the economic unit retains its identity. However, it held that there is no transfer under TUPE where the transferor 2015 Paris Smith LLP 03

4 In this case, control of the business remained with Martlet Ltd which retained liability for Mr Layton s employment (even though as a result of the restructuring, he was jointly and severally employed by all members of the group). This meant that the legal position between employer and employee remained unchanged and there had been no relevant transfer under TUPE. Although it is not common to have employees who are employed by several companies, employers who are considering this set up can be reassured that TUPE will not apply to their employees as long as the company remains one of the employers on a joint and several basis. Case reference: Hyde Housing Association Limited and others v Layton 8. The apprenticeships levy The Government has published details on the apprenticeships levy, which it intends to introduce in April 2017, to help fund new apprenticeships. The levy will provide funding that each employer can use to meet their individual needs. The levy will be set at a rate of 0.5% of an employer s pay bill (i.e. total employee earnings but not including benefits in kind). However, employers will receive an annual allowance of 15,000 against the levy. This means that the levy will only be payable if the employer s pay bill exceeds 3 million per year and over 98% of employers are expected to be exempt from paying the levy. Connected employers, such as a group of companies, will however only receive one allowance. The levy will be collected by HMRC through PAYE. Employers in England will be able to access funding for training through the Digital Apprenticeships Service. Employers who pay the levy will be able to access more funding than they have put in, through Government topups. However, levy funding which is not used within two years will expire, making it available for other employers. 9. New DBS code of practice The Disclosure and Barring Service (DBS) has published a new code of practice for registered persons and other recipients of disclosed information, which can be read here. The code of practice contains information on registration details, the application process, identity verification, data handling, suitability policy, eligibility, compliance requests and the payment of fees. Failure to comply with the code of practice can result in the suspension of DBS registration. 10. Data protection: Guidance on disclosing information safely The Information Commissioner s Office (ICO) has published guidance on disclosing information safely and can be read here. The guidance is aimed at helping organisations fully understand their obligations and promoting good practice. It is relevant to organisations who disclose information which has been derived from personal data, including organisations releasing data as part of a subject access request. It is also relevant to public authorities responding to a freedom of information or environmental information request, proactively publishing data as part of a publication scheme or otherwise making data available. The guidance explains some of the most common types of inappropriate disclosures that the ICO has seen as well as other types of disclosures of which data controllers and public authorities should be aware. Find out more Clive Dobbin Partner clive.dobbin@parissmith.co.uk Although the apprenticeship levy will apply across the whole of the UK, as apprenticeships are a devolved matter in Scotland, Wales and Northern Ireland, separate arrangements will need to be made by the Government for giving employers in those parts of the UK access to the fund Paris Smith LLP 04

5 David Roath Partner Jane Biddlecombe Claire Merritt Gemma Robinson Paris Smith LLP 05