Weekly top five for employers: 22 May

1. Brexit and 'a great time to be alive'

Admitting that the challenge of Brexit has 'proved harder than I anticipated', the UK Prime Minister has given another speech on Brexit. In her speech, the Prime Minister explains what the Withdrawal Agreement Bill (WAB) will contain. In short it has been loaded with many of things that MPs from across the spectrum have been requesting, in the hope of getting it passed. This is bundled up as a ten-point 'New Brexit Deal'.

The most eye-catching offer is to include in the WAB when it is introduced "a requirement to vote on whether to hold a second referendum". It is important to note that it is not saying there will be a second referendum. It is saying the House of Commons would vote on whether to hold a second referendum. It follows that we don't know what the choices(s) in that referendum – if there is one – would be.

The ten-point plan as detailed in the speech, does include a commitment to 'a new Workers’ Rights Bill that guarantees workers’ rights will be no less favourable than in the EU' – however, this guarantee of workers' rights is not a new announcement. Labour MPs have previously pushed Theresa May for a stand-alone bill, pushing for guarantees including a “regression lock” to ensure UK standards did not slip below those of the EU as well as opportunities for MPs to vote on raising UK standards when future EU laws are implemented.

The text of the WAB is due to be published in the next few days, with the second reading expected in the week of 3 June 2019. If the government loses the vote then, as the Prime Minister said in her speech, "leaving the EU with a negotiated deal any time soon will be dead in the water". She goes on to list what could follow: no deal (though adds that this Parliament would of course try to stop that); a General Election; a second referendum (bit confusing, as that could come out of the WAB); or revocation of Article 50. More likely, a further extension. If the WAB passed its second reading, then it will be open to MPs – and peers, when it gets to the Lords – to amend the Bill. Passing second reading would be a big moment, as it would suggest that the UK may be on course for leaving the EU on 31 October 2019 (or even earlier; the UK leaves on the first day of the month after the Withdrawal Agreement is ratified).

For no apparent reason, Mrs May observed in her speech that "this is a great time to be alive". As the old joke goes, it's certainly better than the alternative.

2. CJEU rules that employers must keep a record of all hours worked by workers each day – what does this mean for UK employers?

The CJEU has ruled on what records of working hours an employer is obliged to maintain under the EU Working Time Directive (WTD) which limits maximum weekly working time to 48 hours a week and gives workers the right to daily and weekly rest breaks. Whilst Spanish legislation does not require an employer to set up a system to record actual daily working time, trade unions sought a judicial declaration in the Spanish courts that an employer was obliged to do so in order to check compliance with rules on working time limits. The Spanish courts sought a preliminary ruling from the CJEU as to whether Spanish law provided effective protection of EU working time limits as contained in the Working Time Directive (WTD).

The CJEU agreed with the AG Opinion issued earlier this year.

• The right to maximum working hours and rest breaks is a particularly important rule of EU social law, enshrined in the Charter of Fundamental Rights of the EU to guarantee better protection of the health and safety of workers.
• To ensure the effectiveness of those rights and that they are guaranteed in full, Member States must require employers to set up an 'objective, reliable and accessible system' enabling the duration of time worked each day by each worker to be measured – otherwise the rights are liable to be rendered meaningless.
• Member States may define the specific arrangements for implementing such a system, in particular the form that it must take. Regard should be had to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings (e.g. their size).
• Use of other evidence, such as witness statements, emails or telephone and computer records is not sufficient. They do not provide objective and reliable data, particularly taking into account the fact that workers are the weaker party in the employment relationship and may be reluctant to give evidence against their employer.

In the UK, the WTD is implemented via the Working Time Regulations (WTR) and which, like the Spanish legislation in issue, does not require employers to keep a specific record of hours worked by their workers each day. The requirement is to keep records that are 'adequate' to show whether the limits on maximum working time are being complied with, and to retain these records for two years. A worker can opt out of the 48 hour working week limit and in which case an employer must maintain up to date records which specify the number of hours worked by that worker during each reference period (generally a period of 17 weeks). The WTR does not, however, specifically require employers to keep record of actual working hours.

So what does this mean? The UK could be sued for damages for failing to implement the WTD correctly. However, whilst our Employment Tribunals are obliged to interpret domestic law in line with EU law, the WTR does not allow individual workers to make a claim for an employer's failure to keep adequate records - instead this is a criminal offence enforced by the Health and Safety Executive. We must therefore wait and see if the UK government now legislates to bring the WTR into line with the WTD and employers should, therefore, start considering how they can keep more detailed records of working time in a practical and cost effective manner.

Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE

3. Court of Appeal upholds dismissal for inappropriate religious conversations was fair

In a case which has attracted media attention, the CA has upheld as fair the dismissal of a nurse, a committed Christian, who had given a patient a bible and tried to covert people to her religion. The claimant, who was already subject to a final formal warning for a medication error, was the subject of complaints arising from her comments to patients raising religious matters but which went beyond simply asking for their religion for the purposes of completing a pro forma document. She was instructed not to do this and agreed to comply. However, following a further two incidents she was subject to disciplinary proceedings and summarily dismissed.

The claimant did not argue religious discrimination. Instead she claimed unfair dismissal and relied on the protections under Article 9 of the European Convention of Human Rights (right to freedom of thought, conscience and religion).

The CA agreed with the ET and the EAT. Whilst it was recognised that proselytism is protected in line with an earlier decision EAT decision, it noted that the protection did not extend to improper proselyism, emphasising that it was 'important that cases such as this should not become over-elaborate or excessively complicated'. Looking at it as a case of unfair dismissal, the claimant accepted that she had initiated conversations with patients about religion, she had assured her employer she would stop doing so but subsequently failed to comply with that lawful instruction and her employer had conducted a fair procedure through investigation, disciplinary hearing and appeal. The ET had not erred in finding that the decision to dismiss fell within the band of reasonable responses open to an employer, even having regard to the importance of the right to freedom of religion.

This case is helpful for employers where there is improper proselytizing of beliefs and emphasizes the importance of having appropriate policies and procedures in place and following through with them.

Kuteh v Dartford and Gravesham NHS Trust

4. Is an increase to the National Minimum Wage on the cards?

Chancellor Phillip Hammond has announced this week that he is seriously considering a major increase to the minimum wage. The proposal under discussion would see the minimum wage pushed up to 66% of median earnings and would allow, according to the Chancellor set a course to end low pay in Britain and follows on from the Treasury's commission of a study into the effects of a major increase to the minimum wage. However, the Office of Budget Responsibility has also warned that in today’s terms setting the minimum wage at 66% would cost 140,000 jobs. The main minimum wage rate currently stands at £8.21 an hour and is due to rise to 60% of median income next year, or about £8.60 an hour.

Labour has also recently announced that it would look to raise the National Minimum wage to £10 an hour by 2020 for all workers.

5. Ten minute bill seeks to push forward extended protection against redundancy

The Pregnancy and Maternity (Redundancy Protection) Bill 2019 seeks to prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or leave, except in specified circumstances. It has been introduced under the 10 minute rule which allows a backbench MP to make their case for a new Bill in a speech lasting up to 10 minutes. Whilst the chances of the Bill being passed may be slim compared to a government bill, the bill has been introduced by the Chair of the Women and Equalities Committee who is seeking to push forward the government's proposals published in a consultation paper earlier this year to extend the protections from redundancy and discrimination for women on maternity leave and other expectant parents. Currently, women are protected from redundancy only while they are on maternity leave. The proposal is to extend this protection so that it applies from the point at which the employee notifies their employer of their pregnancy until six months after they return to work and for this extended protection to be afforded to those on adoption leave or shared parental leave.

The introduction of the Bill comes on the back of the Women and Equalities Committee's response to the consultation. It recommends that the proposed changes are implemented as soon as possible and it also supports a suggested consultation on increasing the time limits for pregnancy and maternity discrimination claims. The Committee has however sought clarity on what forms of other parental leave would qualify for the extended protection and on how a proposed new single enforcement agency for the labour market would ensure that parents are protected from pregnancy and maternity discrimination. Further suggestions from the committee were that a single comprehensive website be set up to advise employers and individuals on pregnancy and maternity rights and that large companies be required to report on retention rates for women 12 months after returning from maternity leave or applying for flexible working.

If these changes are implemented as recommended by the committee, when carrying out a redundancy exercise, employers will need to offer suitable alternative employment, where available, to those who have informed their employer that they are pregnant, those on maternity or adoption leave and those parents that have taken qualifying leave in the previous six months. Further detail will be needed to see how this will work in practice for different types of leave.