Monday, 4 July 2016

JULY Edition Employment Law Newsletter

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  Colleagues & Chums ,

Well,   here are,  in the midst of the sort of political turmoil we could not have imagined even a month ago.  We, of course, will carry on,  as you do, not that much will change on a day to day basis and almost certainly nothing about employment legislation will make any difference.   If you have a moment, do follow the link to my blog on the Daniel Barnett comment.   Mr. Barnett is one of our leading commentators on employment law and his opinion is well  worth the read.


            Read on for details, and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 
 

First The News: 
 
Age Discrimination and National Minimum Wage

The House of Commons library has produced a debate pack (ie briefing note for MPs) on the interaction between bands of the national minimum wage and age discrimination.
It is intended to inform intelligent discussion in a forthcoming Westminster Hall debate about the introduction of the National Living Wage alongside a new 21-24 year old age band, which has led to renewed interest in the rationale behind minimum wage age-banding, fears that workers over 25 would be discriminated against in favour of younger, cheaper, workers and concerns that workers aged 21-24 are now ineligible for the full minimum wage.
The rationale for minimum wage age banding has typically been that younger workers occupy a more vulnerable position in the labour market, with a greater need to acquire experience, and that if younger workers were eligible for the full minimum wage they might be priced out of the labour market.


My comment:   of course,  if I were to be cynical,  I might say they should have thought of this before !  

read the full piece on my blog page
 
 
 
Newsflash:  
 

The Immigration Act 2016 (Commencement No.1) Regulations 2016 have been made bringing three of the Act’s employment provisions into force on 12 July 2016:   
  • Sections 1 to 9, which require the Secretary of State to appoint a Director of Labour Market Enforcement to oversee compliance in the labour market, principally in relation to employment agencies, the National Minimum Wage and the Gangmasters (Licensing) Act 2004.
  • S.34, which will create a new offence of illegal working where a person works at a time when he or she reasonably believes that he or she is disqualified from doing so because of his or her immigration status. A person convicted of this offence will be subject to imprisonment for up to 51 weeks or a fine, or both and may be subject to a confiscation order of wages as the proceeds of crime.
  • S.35, which extends the existing criminal offence of knowingly employing an illegal worker to a situation where the employer has ‘reasonable cause’ to believe that the employee is disqualified from working because of his or her immigration status. The maximum term of imprisonment for conviction of offence on indictment will increase from two years to five years.
No date has been indicated as to when S.77 will come into force, i.e. requiring a public authority to ensure that each person who works in a customer-facing role speaks fluent English.

We knew this was coming in,  now we have a definite date. 
 

read full details on my blog page 

Daniel Barnett's excellent summary of the impact of BREXIT on employment legislation.
 
The referendum vote on 23rd June was a vote of principle.  The result is not technically binding on the Government, although it is inconceivable that a 'leave' vote would be ignored.
If we vote to leave, the Government will have to negotiate a new trading relationship with what would now be a 27 member organisation, to allow British firms to sell goods and services to EU countries without being hit by excessive tariffs and other restrictions.  This process would undoubtedly take at least two years, so nothing will happen fast.    And the results of those negotiations would be crucial.  For example, we could follow the Norway model, giving us access to the single market but freeing us from certain EU rules on agriculture, fisheries, and home affairs.  Or we could follow the Swiss model, negotiating with countries on a country by country basis.  Or we can just rely on our membership of the World Trade Organisation.

See full details on this on blog page

 

Download of employee pay rates,  NMW, "living wage" and other benefit entitlements:


Additionally:
In you need further in depth help working out what exactly counts as minimum wage,  the DBIS has produced this 55 page guide,

"Calculating the minimum wage"     
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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
MYTH:   if you run an office based business, you need a health and safety consultant.
 

The reality

You probably already deal with most business issues yourself and health and safety should be no different.
If you run a low-risk, office-based business then health and safety is something you can manage without needing to buy in expert help.
After all, you should know your business better than anyone else.
 

MYTH      you cannot wear flip flops to work :


The reality

During the summer, many of us think about wearing sandals or flip-flops to work to help us stay cool. Despite recent reports to the contrary, health and safety law doesn't ban them.
However, slips, trips and falls do account for about 30% of all workplace accidents, and what you wear on your feet can make a difference. So, if you work somewhere where the floor can't be kept dry or clean then wearing shoes that fit well and have a good grip would be a better choice than flip-flops.

Daniel Barnett's summary of the impact of BREXIT on employment legislation.


The referendum vote on 23rd June was a vote of principle.  The result is not technically binding on the Government, although it is inconceivable that a 'leave' vote would be ignored.
If we vote to leave, the Government will have to negotiate a new trading relationship with what would now be a 27 member organisation, to allow British firms to sell goods and services to EU countries without being hit by excessive tariffs and other restrictions.  This process would undoubtedly take at least two years, so nothing will happen fast.    And the results of those negotiations would be crucial.  For example, we could follow the Norweigan model, giving us access to the single market but freeing us from certain EU rules on agriculture, fisheries, and home affairs.  Or we could follow the Swiss model, negotiating with countries on a country by country basis.  Or we can just rely on our membership of the World Trade Organisation.

            Depending on the model ultimately chosen, we may remain bound by some of the European employment laws, as the EU countries would not enter into trade and other agreements with us if we were able to undercut them by allowing businesses to employ workers on less onerous (and thus cheaper, and thus undercutting the other country's businesses) terms.  The laws we'd probably have to remain signed up to are likely to be the main social framework laws, especially working time.  Plus, leaving the EU would make no immediate difference, because we have implemented all EU Directives into Regulations - which remain binding UK regulations.  Leaving the EU will not repeal TUPE – we’d need to repeal TUPE itself!       These are my predictions for change, in the medium to long term, if the UK has full freedom to repeal all European employment laws…

 TUPE     TUPE will remain.  It’s part of accepted employment protection now, and we gold-plated it when introducing service provision change in 2006.  But there would be tweaking, for example a relaxation of consultation provisions, and probably allowing post-transfer harmonisation of terms and conditions (which we can’t do now because of a European case called Daddy’s Dance Hall ).
 Redundancy consultation Our 20+ redundancy collective consultation laws stem from an EU Directive.  These are unpopular with employers and I suspect will be watered down, for example requiring collective consultation only if over, say, 100 people being made redundant (rather than 20, which is the current threshold).  But this will not be a legislative priority.
Working Time Regulations Most of the Working Time Regulations will remain. But, I also think the maximum average 48 hour working week will be abolished, as it is universally unpopular and commonly ignored.  
Paid holiday will certainly stay, and of course we gold-plated the European 4 weeks' paid annual leave with 5.6 weeks in the UK.  But legislation will be passed to reverse some of the holiday time cases, for example accruing holiday during long-term when sick leave.  I also suspect a 'weeks pay', which currently includes commission and overtime following ECJ rulings, will be pared back to the position it was a few years ago, with just basic salary being paid as holiday pay. 
Agency Worker Regulations These implement the EU Temporary Agency Workers Directive, which requires employers to offer equal terms & benefits to agency workers once they've been working for 12 weeks.

My thanks to the ever excellent Daniel Barnett site for his informed comment. 

Three Immigration Act employment provisions in force from 12 July 2016

Three Immigration Act employment provisions in force from 12 July 2016

The Immigration Act 2016 (Commencement No.1) Regulations 2016 have been made bringing three of the Act’s employment provisions into force on 12 July 2016:   
  • Sections 1 to 9, which require the Secretary of State to appoint a Director of Labour Market Enforcement to oversee compliance in the labour market, principally in relation to employment agencies, the National Minimum Wage and the Gangmasters (Licensing) Act 2004.
  • S.34, which will create a new offence of illegal working where a person works at a time when he or she reasonably believes that he or she is disqualified from doing so because of his or her immigration status. A person convicted of this offence will be subject to imprisonment for up to 51 weeks or a fine, or both and may be subject to a confiscation order of wages as the proceeds of crime.
  • S.35, which extends the existing criminal offence of knowingly employing an illegal worker to a situation where the employer has ‘reasonable cause’ to believe that the employee is disqualified from working because of his or her immigration status. The maximum term of imprisonment for conviction of offence on indictment will increase from two years to five years.
No date has been indicated as to when S.77 will come into force, i.e. requiring a public authority to ensure that each person who works in a customer-facing role speaks fluent English.

We knew this was coming in,  now we have a definite date. 

Age Discrimination and National Minimum Wage

Age Discrimination and National Minimum Wage

The House of Commons library has produced a debate pack (ie briefing note for MPs) on the interaction between bands of the national minimum wage and age discrimination.

It is intended to inform intelligent discussion in a forthcoming Westminster Hall debate about the introduction of the National Living Wage alongside a new 21-24 year old age band, which has led to renewed interest in the rationale behind minimum wage age-banding, fears that workers over 25 would be discriminated against in favour of younger, cheaper, workers and concerns that workers aged 21-24 are now ineligible for the full minimum wage.

The rationale for minimum wage age banding has typically been that younger workers occupy a more vulnerable position in the labour market, with a greater need to acquire experience, and that if younger workers were eligible for the full minimum wage they might be priced out of the labour market.


My comment:   of course,  if I were to be cynical,  I might say they should have thought of this before !