ALL REGIONAL COUNCILS
20th January 2016
Winter Legal Update 2016
1. Conciliation Officers
It has come to my attention that members are putting their reps and Regional Administrators forward as conciliators for ACAS conciliation; please remind all branch activists and reps that the Unions approved Conciliator’s are Regional Organisers. Members can act for themselves in ACAS or nominate their Regional Organiser. If in any doubt as to who the Regional Organiser is they should contact their Regional Office.
2. ACAS Certificates
These are extremely important as receipt of a certificate starts the limitation clock running. Members also cannot begin a Tribunal claim without one. When a certificate is received by the member or Regional Organiser provided the Legal Claim is current and ongoing it should be sent to the Legal Department immediately so that limitation can be recalculated and member advised.
3. Zero Hours Contracts
In May 2015 the Employment Relations Act 1996 (ERA) was amended to include at s.27A a provision which made unenforceable any requirement in a zero-hour contract that the worker could not work elsewhere or could do so only with the employer’s consent. This was regarded as toothless because many zero-hour staff are not employees nor have the necessary two year qualifying period to claim unfair dismissal. This has now changed.
The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 came into force in January and changed the provision in favour of the employee.
The 2015 Regulations provide that where a worker is dismissed for working elsewhere or doing so without the employers consent, the dismissal will now be unfair. No minimum length of service is required and workers without employee status can claim the same level of compensation as those with employee status. Where the worker is not dismissed but is subject to a detriment that is now actionable in the same way as the other detriment provisions contained in the ERA.
The Regulations shift the burden of proof on the employer from the outset. Regulation 3(6) provides that it is for the employer to establish that the dismissal or detriment was for something other than that breach and if it cannot do so it will lose.
4. Right to Rent Scheme
Under the Immigration Act 2014 (IA) the Right to rent scheme will be extended across the whole of England. It has been piloted in the West Midlands since 1st December 2014. From 1st February 2016 all private landlords will have to check whether prospective tenants have the right to occupy their premises before granting a tenancy.
The intention of the scheme is to prevent those unlawfully in the UK from accessing housing. Right to Rent is based on immigration status. Under the IA landlords must ensure that prospective tenants are not disqualified from occupying their property. A person will be disqualified if they are not a:
• British citizen
• National of an EEA state
• National of Switzerland; or
• Person who has a right to rent in relation to the premises.
A tenant will not have the right to rent if they require leave to enter or remain in the UK and do not have that leave, or they have obtained leave but it is subject to conditions that prevent them from occupying the premises.
Landlords must also ensure that someone’s right to occupy does not lapse.
Breach of the Act can result in penalties of up to £3,000 per tenant.
• Obtain original versions of one or more documents;
o UK/ EEA passport
o National ID card
o Permanent Residence Card
• Check the documents validity in the presence of the prospective tenant holder
• Make and retain a clear copy
• Record the date the immigration check was made
Landlords will need to notify any concerns to the Home Office and ensure that their immigration check does not flout anti-discrimination laws.
If landlords use an agency they can pass on these obligations in writing to the agency.
This scheme designed to stop unscrupulous landlords could will give them an avenue to exploit the vulnerable. It remains to be seen whether it will crack down on unscrupulous landlords. It will make it more difficult for those with no right to be in the UK to rent private accommodation. All of our members will be subjected to these checks when they rent given the requirement to avoid discrimination claims.
5. Striking Workers
The Government recently responded to its consultation on tackling intimidation of non-striking workers. It has confirmed that it will drop a number of proposals including plans:
o To require unions to publish their plans for industrial action, pickets and social medical campaigns in advance;
o For a new criminal offence of intimidation on the picket line, and
o To require unions to report annually on their industrial action and picketing activities.
It will however continue with proposals to introduce a legal requirement for unions to appoint a picket supervisor who will be responsible for the conduct of the picket.
The Government has also confirmed that it will update the Code of Practice on picketing to clarify the legal protections already available to those who suffer intimidation in relation to industrial action and introduce new guidance on how to seek redress if intimidation takes place using social media.
6. Changes in 2016;
o Greater protection for zero hours workers (see above)
o Introduction of the National Living Wage, introduced in April applicable to employees aged 25 and other. The rate will be £7.20 per hour, rising to at least £9.00 per hour by 2020.
o The Trade Union Bill is currently progressing through Parliament, it is expected that the Bill will complete its passage through Parliament this year.
o Changes to the taxation of termination payments. The Government has been consulting on the future of taxation of termination payments, including the current exemption from tax of the first £30,000 of any termination payment. The Governments response to the consultation is expected this year.
o Consultation on grandparental leave is scheduled to take place this year on proposals to extent shared parental leave and pay to working grandparents with the proposals to be implements in 2018.
o Gender Pay Gap Regulations due. The Government is to require all private sector employees with 250 or more employees to publish gender pay gap information. Regulations to implement the legislation were scheduled to come into force by the end of March 2016, but they have not been published yet.
o Modern Slavery Act 2015 statutory statement. All commercial organisations carrying on business in the UK with a turnover of £36m or more from October 2015 have to complete a slavery and human trafficking statement for each financial year. The provision is for large business to publicly state each year the actions they are taking to ensure their supply chains are slavery free.
The statement must be formally approved by the organisation. Failure to do so may lead to enforcement proceedings being taken by the Secretary of State by way of civil proceedings in the High Court.
o New Health and Safety sentencing guidelines issued on 3rd November 2015 which will apply to sentencing in all health and safety and corporate manslaughter prosecutions. It will be mandatory for all courts to follow the guidelines for all sentences passed after 1st February 2016 regardless of whether or not the offence took place before that date.
Current guidelines provide fines for health and safety offences resulting in death should not normally be less than £100,000 and for corporate manslaughter not less than £500,000. Under the new guidelines fines will be calculated in a staged process having regard to the level of harm, culpability and the organisations turn over.
For the most serious Health and Safety offences, fines of up to £10 million are envisaged for large organisations (I.e. those with a turnover greater than 50million), £4million for medium organisations (turn over between 10-50 million) up to 1.6 million for small organisations (2-10 million) and up to £450,000 for micro businesses (turnover of less than 2 million).
7. Territorial Jurisdiction: Seafarers
In R (Fleet Maritime Services (Bermuda) Limited) v The Pensions Regulator the High Court ruled that UK courts had jurisdiction to hear a case if the seafarer work from a ‘base’ in Britain, but that this will not be the case if they do not habitually begin and end their tours of duty from a British port.
The Regulator issued the Bermuda-incorporated Claimant with a compliance notice for failing to auto-enrol British-domiciled seafarers regularly working aboard its cruise ships. The Claimant brought a judicial review because its ships operated principally outside of British territorial waters.
The Court concluded that the Lawson v Serco approach to determining a peripatetic worker's ‘base’ for the purposes of unfair dismissal jurisdiction was also applicable to the 2008 Act. The Court further determined that, irrespective of duration aboard, seafarers are, under the 2008 Act, based at the port from which their tours of duty generally begin and end not aboard the ship itself or under its flag state. For the Act to apply some degree of regularity is also required, a single tour cannot establish a base.
Days spent traveling between Britain and foreign ports of embarkation, whilst remunerated, were also properly treated as commuting, not work. As such the Regulator had erred in finding a duty in relation to those of the Claimant’s employees whose tours did not habitually commence from British ports.
8. Carry forward of holiday pay during sickness
EAT in Plumb v Duncan Print Group Ltd decided that the carry over period for annual leave is subject to an 18 month temporal limit.
Reg 13(9) of Working Time Regs 1998 requires a worker to take annual leave within the leave year it was due. This may not be replaced by a payment in lieu except where the employment is terminated.
The Court decided (NHS Leeds V Lawer) that where a worker was unable or unwilling to take paid annual leave during a period of sickness absence they were entitled to take their leave when they were not sick.
In Plumb, Mr P was a printer who had an accident in April 2010 and was certified unfair until Feb 2014 when his employment was terminated. He did not take paid annual leave for 2010, 2011 and 2012.In Aug 2015 he requested 20 days paid annual leave for each of these years. His request was refused. He bought a claim for holiday pay for these years. EAT dismissed his claim.
Please bring the contents of this circular to the attention of all relevant members.