Here’s what’s in this edition of ByteSize Employment:
- Read all about it? Employment tribunal decisions to go online
- Human error remains main cause of data breaches, ICO data shows
- Is the handbook part of the employment contract
- Warning from experts over auto enrolment
- Rise in maternity discrimination
- Disability discrimination – maintaining pay protection can amount to a reasonable adjustment
- Taxation of employment termination payments – Changes from April 2018
Please click on the links above to view the articles, or download a PDF copy here.
A new online database of employment tribunal decisions will be available to all to search on the internet from Autumn 2016. Currently, paper copies of judgements from England and Wales are stored separately to those from Scotland whereas the new database will cover judgements in both England Wales and Scotland. Although the new database will initially cover new judgements, the decision is still to be made on whether existing judgements will be converted and made available online.
In the 448 incidents of data breach recorded by the UK regulator during the first three months of 2016, most incidents could be attributed to human error according to data released by the regulator. Of the incidents, 74 were recorded as a loss or theft of paperwork. A further 74 were cases where data was posted or faxed to the wrong recipient. In 42 cases, data was emailed to the incorrect recipient. Unencrypted devices were either lost or stolen on 20 occasions, and 24 cases concerned insecure disposal of paperwork.
In a recent case, the Court of Appeal had to consider when terms in a handbook are incorporated into a contract of employment. They decided that the absence management policy did have contractual effect.
It is a handy reminder that employers should always make it clear which provisions in the handbook are intended to be contractual and which are not. If you are in any doubt, you should seek legal advice. It is a good idea to have handbooks reviewed from time to time to ensure any legislative changes are made, for example in relation to family friendly rights which have been the subject of much change over the past few years.
The case was the Department for Transport v Maureen Sparks and Ors 
Experts have warned that fines for noncompliance have increased hugely over the past 12 months as we reach the staging dates for SMEs. The Pensions Regulator issued 2,234 fixed fines in March 2016 compared with 367 in the same quarter in 2015. The Pensions Regulator is available to give firms assistance but the message is start early so that issues can be addressed before failure to comply gives rise to a fine.
Research from Citizens Advice shows that there has been a 60% increase in the number of women seeking advice on discrimination around maternity and maternity leave issues in just a year. The most common issues it dealt with included redundancy, reduction in hours including being moved to a zero-hour contract and having a role changed upon return to work.
A recent case has found that the maintaining of pay protection can amount to a reasonable adjustment. The EAT decided that an employee whose condition meant that he could no longer do his original role due to not being able to do heavy lifting or work in confined spaces, was entitled to pay protection for the newly created key runner role which involved driving to the engineers in the field delivering parts and keys.
The new role had no requirement for engineering skills as the original role had and the employer argued that a lower rate of pay should be applied to the new role. The EAT decided that the employer was required to employ him at his original rate of pay as a reasonable adjustment under section 20 of the Equality Act 2010. The duty to make reasonable adjustments envisages cost to the employer.
The tribunal concluded that it was possible to envisage cases where pay protection was a reasonable adjustment to get an employee back to work or keep an employee in work as required by the legislation. Clearly it will depend on the individual circumstances but employers need to be aware of this development.
The case was G4S Cash Solutions (UK) Ltd v Powell.
The Government has published the response to its consultation on the treatment of employment termination payments. The good news is that the current tax exemption of £30,000 for termination payment is being preserved.
However, the changes mean that the exemption will no longer cover any pay, bonuses or benefits which would have been earned in the notice period. There is further consultation on going but the changes are proposed to take effect from April 2018.
This is not legal advice. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website.
Posted on September 1, 2016