Employment update | Top three in 3 minutes | 23 September 2019

Written on 25 Sep 2019

Covert recordings | Time to review and update disciplinary procedures

Is an employer entitled to dismiss an employee for gross misconduct for secretly recording a meeting? The EAT has confirmed that an employee’s motivation must be taken into account. Rejecting an employer’s argument that a covert recording had been made to entrap a member of HR, it noted that other possible motives for the recording could include a desire by the employee to keep a record of the meeting, to enable the employee to take advice at a later date or to protect the employee from being misrepresented. Indeed, the EAT noted that the ease with which employees could now record meetings meant that it should not automatically be considered a malicious act.

Employers should set out their policy on recording meetings in their disciplinary, grievance and related procedures and confirm that any covert recording is potentially gross misconduct. Employers should also continue to take practical steps to minimise the risks covert recordings can potentially bring, such as providing minutes of relevant meetings to the employee and ensuring that any private deliberations are held in a different location.

Holiday pay | 12 week reference period should be used for a worker on a permanent but irregular hours contract

Following on from the recent CA ruling on whether or not to include voluntary overtime in holiday pay calculations and the Northern Ireland Court of Appeal calling into question the ‘three month’ rule, the CA has issued a decision on how holiday pay should be calculated for a teacher who worked irregular hours on a permanent term-time contract. The CA confirmed that her holiday pay, essentially over the school holiday periods, should be calculated using the formula set out in the Working Time Regulations. As she did not have normal working hours, her holiday should be calculated using her average remuneration in the preceding 12 week period, excluding any weeks where she was not paid, and not capping it at 12.07% of annualised hours (as had been suggested by ACAS). Employers should now review any holiday pay arrangements where they have been adopting the approach suggested by ACAS to ensure that it complies with the WTR requirements.

Employers should review how they pay holiday in light of the latest court decisions. From April 2020, new regulations will come into force which will change the 12 week reference period to a 52 week reference period. Employers should now start to plan accordingly.

No deal Brexit | What would be on the cards for employers?

With uncertainty continuing to surround Brexit, a ‘no-deal’ Brexit on 31 October is not off the cards. Whilst the UK government previously made it clear that businesses should not see any significant changes to employment rights if and when the UK leaves the EU, political uncertainty and the prospect of a general election means that more significant domestic reforms could still be on the agenda. Labour has recently announced plans to strengthen individual and collective workers’ rights, including the creation of a new Ministry for Employment Rights and a Workers’ Protection Agency.

Looking at immigration rights on a no-deal Brexit, the UK government has confirmed that the EU Settlement Scheme will continue in a no deal scenario, meaning that any EU citizen living in the UK by 30 October 2019 will be eligible to apply to this scheme and secure their status in the UK. However, as there would be no agreed implementation period, this guarantee would only apply to EU citizens who are resident in the UK by 31 October 2019. If, however, a deal is ratified, EU nationals would be given the right to apply for settled status if they were living in the UK by 31 December 2020.

In a recent announcement, the UK government has also confirmed that any EU national arriving after the 1 November 2019 in the event of a no-deal scenario will not be required to make any applications for permissions to remain in the UK and will be able to work. They will, however, not be able to apply under the EU Settlement Scheme. An individual’s passport will continue to be acceptable as evidence of a lawful right to work. However anyone arriving after 1 November 2019 must by 1 January 2021 either possess EU Temporary Leave to Remain (a three year visa granted on application by any EU national during this transition period) or a visa under the Immigration Rules in place at that time.

Please contact us to discuss how Brexit may impact on your working practices. Our specialist immigration team will also be happy to provide you with the latest position regarding your EU workers.