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News in Brief – February 2019

Hermes offer “ground breaking" pay deal to its 15,000 gig workers

The delivery firm Hermes, has introduced new contracts for its couriers, which give them up to 28 days’ paid leave and hourly rates of pay. 

These are referred to as "self employment plus" contracts – a term that has no specific legal meaning.  We don’t know if Hermes accepts that staff working under these contracts will be workers, and have the rights associated with that status, or if it believes they are self-employed contractors “with benefits.” 

Last year, 65 couriers working for Hermes as self-employed contractors successfully won the right to be treated as workers, following a decision at Leeds Employment Tribunal.

Female supermarket staff at Asda can compare themselves with men working in warehouses and distribution centres with a different management structure

The Court of Appeal has delivered its judgment on the issue of comparators in the long-running equal pay saga in Asda Stores Ltd v Brierley.

Thousands of Asda’s retail staff say their customer-facing roles are undervalued compared to warehouse work. For equal pay comparisons, claimants and their comparators need to be working at the same establishment, or at establishments at which “common terms are observed”.

The Court of Appeal said the claims could proceed because there were common terms between the warehouses and supermarkets. It said that common terms apply between two establishments, not only to actual employees in the relevant classes working there, but also where they would apply – even if the claimant’s class of employee would never, in practice, be employed at the comparator’s establishment (and vice versa).

Unless Asda appeals, the case will move to determine whether the workers do work of equal value.

Acas publishes new guidance to help employers avoid age discrimination

A report issued by the Women and Equality Committee last year found that the UK faces acute challenges recruiting and retaining an experienced, skilled workforce. It also said that the UK is wasting the talents of more than one million people aged over 50, who would be willing to work if the right opportunity arose. 

It concludes that age discrimination is the "root cause" of this problem.

Acas has published new guidance to help employers avoid discriminating against older workers and job applicants. The 27 page document explains the law, and sets out the most common situations where age discrimination might occur. This includes recruitment, promotion and performance management. 

In common with other Acas guides, it differentiates between what employers have to do to comply with the law and what is good practice.

Employment judgments must remain public

A feature of the employment tribunal system often overlooked by both sides is the publication of tribunal judgments. Since February 2017, Her Majesty's Courts and Tribunal Service has published all tribunal judgments and written reasons via the online public Register

You might think that you need to go to that specific online Register address to access the judgments, but this isn't the case. You can Google the surname of the claimant and the name of the respondent, and it will bring up the relevant publication(s). For many, this has been a worrying development, as whatever the employment tribunal judge decides to record in the written decision/reasons is there for all to see.

A recent decision in the Employment Appeals Tribunal has made it clear that that judgments must remain open to the public – even if they contain sensitive or embarrassing information or mention evidence given by witnesses who aren't party to the claim.

No-deal Brexit: EU citizens entering UK after 29 March 2019 will need leave to remain

The government has announced that if the UK leaves the EU without a deal, EU citizens and their family members already resident in the UK by 29 March 2019 will still be able to remain here but will have to apply to the EU Settlement Scheme to protect their status.

EU nationals who arrive in the UK on or after 30 March 2019 will be admitted under UK immigration rules and will need permission (leave to enter or remain) unless they don't intend to stay for more than three months. 

However, following the end of free movement and before the UK’s new skills-based immigration system begins in 2021; EU nationals wishing to stay in the UK for more than three months will have to apply for European Temporary Leave to Remain. This will allow EEA citizens arriving in the UK after 29 March 2019 to live, work and study in the UK for a period of three years from the date of their application.

Changes to "right to work" immigration checks

The Home Office Right to Work Checking Service was launched in April 2018. It is free to use and enables UK employers to check the current right to work of a person and to see whether they are subject to any restrictions. 

The system only works if individuals can access their own Home Office right to work records online. They may then share this information with an employer by giving them their "share code" to access the record but they still needed to request paper documents. 

From 28 January 2019, employers can rely solely on an online check where a prospective employee has an immigration status that can be checked using the service. 

Guidance for employers and EU citizens on the pilot EU Settlement Scheme 

The government has published a guide to help EU citizens apply for settled status ahead of Friday 29 March 2019 (the day the UK will exit the EU). Applicants can apply using the app (which only works on Android devices). The process is supposed to be relatively quick (but anecdotal evidence suggests that’s not always the case).

EU citizens wishing to remain in the UK post Brexit need to apply before 30 June 2021 for settled or pre-settled status in order to remain in the UK after 30 June 2021. In case of no-deal, the application deadline for settled status will be brought forward to 31 December 2020.

EU citizens don’t have to pay the £65 fee anymore.

Government says it will not make any immediate changes to gender pay gap (GPG) reporting

The government has published its response to the Department for Business, Energy and Industrial Strategy (BEIS) Committee’s suggestions for reforming GPG reporting. It makes it clear that it won’t make any immediate changes to the regulations.

Specifically: 

  • Organisations with 50 or more employees won’t have to publish their GPG but will be “encouraged” to do so
  • Partner remuneration will remain excluded from the reporting regime
  • No changes will be made to the reporting requirements. The Committee had suggested part-time and full-time GPG statistics should be reported separately, and that salary quartiles are changed to deciles
  • The government won’t be revising the guidance published jointly by Acas and the Government Equalities Office. 

Government publishes guidance on new laws regarding payslips

From Saturday 6 April 2019, all workers must receive payslips. In addition, the pay slips of workers paid by the hour must also clearly set out the number of hours they have been paid for.

The government has published guidance to help organisations understand these new requirements. It includes a number of examples, including for term-time workers.

Government consults on extending redundancy protection for women and new parents

The government has launched a consultation to extend Regulation 10 of the Maternity and Parental Leave Regulations 1999. This regulation requires a woman being made redundant during maternity leave to be offered alternative work where there’s a suitable available vacancy. It’s proposing to extend that right so that it begins when the women informs her employer that she’s pregnant and continues to apply for six months after her return. 

The government also suggests making similar provision in relation to employees taking shared parental leave and adoption leave.

The consultation ends on Friday 5 April 2019.

Campaign to stop employers using non-disclosure agreements (NDAs) to "cover up" pregnancy and maternity discrimination

The campaign group Pregnant Then Screwed has launched a campaign to persuade the government to stop companies using NDAs to “silence staff.” Although it accepts that it might not be possible to ban NDAs, it wants the government to set up an independent body to oversee and monitor their use. All NDAs would have to be reported to this body, and it would have the power to investigate, and act, if they have concerns.

Key Contact

Jo Moseley