What do employers need to know and do this October?

We set out below the key issues for employers in light of recent employment law developments.

US Safe Harbor is invalid

On 6 October 2015 the ECJ delivered its judgment in the case of Schrems v Data Protection Commissioner. The ECJ had been asked by the Irish High Court to decide whether national data protection authorities are bound by the EU-US agreement which permits companies in the European Economic Area to transfer personal data to ‘safe harbor’ registered US companies, or whether they may conduct their own investigations into the relevant data flows to establish whether personal data is adequately protected. The ECJ ruled, amongst other matters, that the Safe Harbor scheme is invalid leaving businesses which have previously relied on this scheme as ensuring an adequate level of protection for personnel and other personal data which is transferred to the US, directly or indirectly, to adopt alternative solutions. 

The European Commission, in response, has already confirmed that negotiations with the US for a “safer” Safe Harbor Framework will continue. For more information see our article here.

Criminal charges provides reminder to comply with HR1 requirements where collective redundancies are proposed

The Guardian has this week reported that three former directors of City Link have been charged with criminal offences in relation to its collapse last Christmas. This follows hot on the heels of the report at the weekend regarding a former director of USC who is facing similar charges. The charges relate to failures to notify the Secretary of State of the proposed redundancies using form HR1. Since March this year, the penalty for failing to comply with the HR1 requirements has changed from a maximum of £5,000 to an unlimited fine. Further where the failure is proved to have been committed with the consent or connivance of or to be attributable to the neglect on the part of any director, manager, secretary or other similar officer of a company, that individual may also be criminally liable. Read more here.

Employers must keep a watch for protected disclosures as EAT allows whistleblowing claim regarding overtime allocation to proceed

We reported back in April on the Employment Appeal Tribunal (“EAT”) decision in Chesterton Global Ltd and anor v Nurmohamed where the EAT concluded that a disclosure made in the interest of 100 senior managers amounted to a disclosure made in the public interest even though the individual’s main concern in making the disclosure was his own commission payment (read more here). The EAT pointed out that the public interest test introduced in June 2013 was intended to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach was personal in nature and there were no wider public interest implications. It also reiterated that it was the individual’s reasonable belief that the disclosure was in the public interest which was relevant and there was no requirement that the disclosure was per se in the public interest. This case is being appealed to the Court of Appeal listed for October 2016.

In the meantime, the EAT has indicated in a further case, Underwood v Wincanton Plc, that the EAT decision in Chesterton should be followed and that a whistleblowing claim should be allowed to proceed where it was at least possible for a matter to be “in the public interest” even if it was concerned only with a contractual dispute between a group of employees and their employer – here a complaint about allocation of overtime. Employers must remain alive to potential protected disclosures and handle them carefully to minimise the risk of successful claims by an employee alleging he or she has made such a disclosure, including a claim of automatically unfair dismissal (and for which compensation is uncapped).

1 October – what employment law changes came into force?

1 October saw changes to employment laws including new National Minimum Wage rates, a removal of the power of an Employment Tribunal to make “wider recommendations” in successful discrimination claims. Read more here.

The Modern Slavery Act 2015 now in force

The new Modern Slavery Act 2015 imposes an obligation on large commercial organisations with operations in the UK to publish an annual, Board-approved, statement setting out the steps that they have taken to prevent slavery, not just within their organisation but also within their supply chain.   Although we are still waiting for guidance from the Government on this obligation, businesses should ensure that they are aware of any requirements on them and the steps they will need to take. Read more here.

What are the limits on HR in disciplinary investigations?

HR are routinely involved in disciplinary investigations but when can it be said that their involvement influences the outcome of disciplinary decisions taken by the investigatory manager? The EAT decision in Ramphal v Department for Transport serves as useful reminder of the extent to which HR can appropriately participate in disciplinary investigations and decisions. Read more here.

A request to be accompanied – when can an employer reject an employee’s chosen companion?

The statutory right for a worker to be accompanied on its face seems straightforward – in essence it provides that a worker can make a reasonable request to be accompanied by a trade union representative or a fellow worker at a disciplinary and grievance hearing. The right is supported by an ACAS Code and ACAS Guidance (see here and here). However, there are occasions when an individual’s request does not fall within the statutory box – the meeting may not be a disciplinary or grievance hearing or the identified companion may be a relative, carer or legal or other expert. Employers must deal carefully with such requests bearing in mind statutory requirements such as the obligation to make reasonable adjustments where an individual is disabled and any contractual terms, including the implied term of trust and confidence. A recent High Court decision has thrown a spotlight on the issues which may arise where an employee is perhaps a remote worker or the outcome of the disciplinary process could be devastating for his or her professional career. Read more here.

Are you managing performance? Eight key issues for employers to watch for

Managing poor performance seems to be a constant issue employers need to grapple with.  Time constraints and business targets mean keeping a check on individual performance is a matter that can be easily overlooked, particularly at a senior level. Following the survey published earlier in the Summer by the Chartered Management Institute highlighting the on-going financial cost for employers where poor performance is left unaddressed, we set out our key issues for employers to watch for here.

 Forthcoming developments

Key developments in the pipeline include:

• The introduction of the National Living Wage from April 2016 which provides for a new minimum pay rate for workers aged 25 or over. Read more here.
• Reporting on the gender pay gap in an organisation (read more here). We are still awaiting the Government’s response to the recent consultation on this issue but it is still anticipated that new regulations may well be in force early next year. Employers with 250 plus employees will need to start considering now what the impact of any new regulations in this respect will be on their current practices. We shall provide further updates as more detail is provided but in the meantime, please do not hesitate to contact your usual OC Contact. 

For future key dates please click here for our Essential HR Calendar. This includes the recent announcement by George Osborne on 5 October that the Government will extend shared parental leave to grandparents by 2018. The details have not been announced but a consultation will take place in the first half of next year. Read more here.