ELiAction News: October 2017
Welcome to the October edition of the Employment Law in Action newsletter providing you with useful information regarding changes to employment legislation, best practice and latest case information.
Data Protection Bill: Summary of main provisions
The Data Protection Bill (“the Bill) will replace the Data Protection Act 1998 (DPA) and provide “a comprehensive and legal framework for data protection in the UK”. The Bill supplements the General Data Protection Regulation ((EU) 2016/679) (GDPR) which becomes directly applicable on 25 May 2018.
When the UK leaves the EU, the Bill allows for the continued application of GDPR standards and the GDPR will be incorporated into the UK’s domestic law under the European Union (Withdrawal) Bill currently before parliament.
The Bill is intended to ensure that UK and EU data protection regimes are aligned post Brexit.
Further details can be found here: UK Data Protection Laws
We will send out further information once the regulations and guidance have been finalised. In the meantime, if you need any advice in respect of your current Data Protection obligations please contact one of the ELiAction team.
Written Statement Directive: European Commission (EC) enters into second stage consultation
On 25 September 2017, the EC entered into a second stage consultation with trade unions and employers’ organisations at EU level on how to modernise the rules (Council Directive 91/533/EEC of 14 October 1991) on employment contracts, in order to make these contracts fairer and more predictable for all types of workers.
The Commission wants to extend the scope of the current Directive on employment contracts (the Written Statement Directive), by extending it to new forms of employment such as on-demand workers, voucher-based workers and platform workers so that no one is left behind.
The Written Statement Directive aims to provide employees with improved protection and requires that every employee be provided with a written document containing information on the essential elements of their contract or employment relationship.
The second stage consultation will run until 3 November 2017. The Commission aims to present a legislative proposal before the end of the year.
If you would like us to review your contracts of employment to ensure that they are up to date please contact one of the ELiAction team.
Corporate Governance: Government response to BEIS Committee report
Following the publication of reports on BHS and Sports Direct in summer 2016, the Business, Energy and Industrial Strategy (BEIS) Committee agreed to conduct an inquiry into whether there were any universal issues that needed to be addressed as to how corporate governance operates.
As well as promoting good corporate governance, the government plans to introduce a secondary legislation requiring all companies of significant size (private as well as public), to explain how their directors have had regard to the employee and other non-shareholder interests, as set out in section 172 of the Companies Act 2006.
On 29 August 2017, the BEIS Committee published the Government’s response to the Committee’s Third Report of Session 2016–17.
National Audit Office publishes modern slavery and human trafficking statement
The Modern Slavery Act 2015 (MSA 2015) consolidates offences relating to trafficking and slavery. Section 54 of the MSA 2015 ‘transparency in supply chains’ requires large businesses (with a total annual turnover of £36m or more), to produce a statement each year setting out the steps that they have taken to ensure that their business and supply chains are slavery free; or a statement that they have taken no steps to do this.
The National Audit Office (NAO) has published its modern slavery statement for 2016/17. The statement details the steps that the NAO has taken during the 2016-17 financial year to prevent modern slavery and human trafficking. It states that the NAO are committed to ensuring that modern slavery and human trafficking does not exist in their supply chain or in any part of their business. If NAO becomes aware that one of their suppliers is accepting of modern slavery or human trafficking in their business or supply chain, they will review their rights to cancel the relevant contract/s and notify the appropriate authorities.
The NAO audits the financial statements of all central government departments, agencies, and many other public bodies, and reports the results to Parliament.
On the 4th October, the Government updated the statutory guidance for employers on how to ensure that slavery and human trafficking is not taking place in their business.
If you need any support or advice in respect of employee checks and their Right to Work in the UK please contact one of the ELiAction team.
Alliance 8.7 calculates 40 million victims of modern slavery in 2016
Research developed jointly by the International Labour Organization (ILO) and the Walk Free Foundation, in partnership with the International Organization for Migration, states that more than 40 million people around the world were victims of modern slavery in 2016.
They conducted surveys in 48 countries and interviewed more than 71,000 people. Their evidence was also supplemented by data from the International Organization for Migration.
They found that:
- 25 million people were estimated to be under forced labour
- 15 million people in forced marriage
- Women and children were found to be the most affected
- The highest proportion of labour exploitation was found in domestic work, followed by construction, manufacturing and fishing sectors
Please read the full report from Alliance 8.7.
Details of the Prime Minister’s speech to the United Nations General Assembly on modern slavery: ‘Behind these numbers are real people’ can be found here.
Collective consultation required if 20 or more employees refuse contract change
In the case of Ciupa and others v II Szpital Miejski, a Polish hospital was experiencing financial difficulties and in order to avoid liquidation, the hospital decided to implement changes to employees’ terms and conditions.
The employer proposed a temporary 15% pay cut to all employees (around 20% accepted). The other employees were given a notice of amendment of working and pay conditions which provided that the employees, after expiry of their notice period, would receive a pay cut that would apply for several months.
The ECJ ruled that the EU Directive relating to collective redundancies requires that collective consultation must take place where an employer decides to implement a unilateral change to terms and conditions, such as pay or hours, to the detriment of the employees. In the event of their refusal, more than 20 or more employees’ contracts would be terminated and as such would be regarded as a ‘redundancy’.
This ruling confirms the position in UK law under the Trade Union and Labour Relations (Consolidation) Act 1992 ,which defines a ‘redundancy’ for collective consultation purposes as a dismissal “not related to the individual concerned”, thereby requiring consultation collectively in such circumstances.
Unfair dismissal: Failure to adjust absence trigger points for disabled employee was discriminatory
In the case of Carrabyne v The DWP, Mrs Carrabyne was disabled and suffered from a hip problem and depression. Her employer the DWP had a policy in place which required all employees to maintain a certain level of attendance so as not to ‘trigger’ the risk of sanction or dismissal.
Mrs Carrabyne took numerous periods of time off work (late or sickness), which activated the ‘trigger’ and she received a final written warning with a six-month review period requiring improved attendance. She was absent again during this review period and was subsequently dismissed.
The DWP accepted that they had treated the Mrs Carrabyne unfavourably because of something arising in consequence of her disability and therefore, the issue between the parties related to whether the DWP could show that the treatment was a proportionate means of achieving a legitimate aim.
The ET found that the balancing act between Mrs Carrabyne’s loss of job and the inconvenience to her colleagues weighed in favour of Mrs Carrabyne remaining employed.
In giving comment and advice in the newsletter, we do not assume legal responsibility for the accuracy of any particular statement. If you have specific views which you wish to discuss we would be pleased to assist you.
If you would like advice on how any of the above articles apply to your business, please contact one of the ELiAction team on 01494 817193 or info@ELiAction.com
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