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Latest Brief - Week Ending 16 February 2018

Constructive knowledge of disability

The Court of Appeal has upheld a decision of the EAT that an employer did not have constructive knowledge of an employee's disability.  An employer cannot be liable for a claim for direct disability discrimination, discrimination arising from disability or a failure to make reasonable adjustments unless the employer knew or should reasonably have known about the employee's disability.   

In this case, the court held that the employer had taken reasonable steps to ascertain whether the employee was disabled, rather than simply rubber-stamping the opinion of the employer's occupational health advisers that the employee was not disabled.  The employer had gone back to occupational health for further clarification, considered correspondence from the employer's GO, and held return to work meetings with the employee before reaching a conclusion.  Therefore, the employer could not reasonably have been expected to know that the employee was disabled.

This case is a useful reminder that employers should not blindly follow advice that they receive from occupational health regarding whether or not an employee is disabled.  Instead, the employer should make enquiries, and come to their own conclusions on the basis of the evidence.  That said, it will be a brave employer who decides an employee is not disabled, when medical advice states that he/she is!  

New orders laid before Parliament regarding payslips

In response to the Taylor Review, the government has put a number of draft Orders before Parliament dealing with employers' obligations regarding payslips.  

One of these Orders will require employers to provide payslips to all workers, rather than just employees, and will give all workers the right to enforce this right in the Tribunal. 

A separate Order will require employers to itemise payslips to show the number of hours paid for, where a worker is paid on an hourly rate basis.  Different figures must be provided where an employee is paid different rates of pay for different types of work.  

Both of these Orders are expected to come into force on 6th April 2019.  

Increase in minimum wage

The annual increase to the minimum wage and national living wage has been announced.  The new rates will be as follows:

Apprentices - Increase from £3.50 to £3.70Aged 16-17 - Increase from £4.05 to £4.20Aged 18-20 - Increase from £5.60 to £5.90Aged 21-24 - Increase from £7.05 to £7.38Aged 25 and over (national living wage) - Increase from £7.50 to £7.83.

The accommodation offset will increase from £6.40 per day to £7.00 per day.  

The increases will take effect from 1st April 2018.

Latest Brief - Week Ending 9 February 2018

Update on the Taylor review

Last year, the Taylor Review of Modern Working Practices was published, making recommendations for how the law could be amended to provide increased protections to individuals working in today's more flexible labour market.  The government has now published its response to this Review.  Among the government's proposals is the proposal to introduce 'day one' rights for all workers, including zero hours workers, and the right to request a more stable contract.  The government also proposes to develop an online tool to determine employment status, review the redundancy legislation in relation to pregnancy and maternity, and introduce tougher penalties for employers who breach existing employment protections.  
The government has confirmed that it will not be taking forward the Review's proposals regarding the reversal of the burden of proof in employment status cases.  The determination of employment status is one area which has received less attention in the government's proposals than was perhaps hoped for.  

However, the government has also launched four further consultations, dealing with employment status, the enforcement of employment rights, agency workers and transparency in the labour market.  After these consultations have been concluded, the government will then decide how to proceed in relation to these areas.  

Ancillary orders for misuse of confidential information

In a recent High Court case arising out of the misappropriation of confidential information by a former employee, the court has ordered the employee to disclose the location of the confidential information that he had wrongly accessed and copied, and the names of third parties who held this.  The case demonstrates the court's powers to make ancillary orders for disclosure of information, and notably, the individual was also ordered not to leave the jurisdiction, and to surrender his passport until he had complied with the order to disclose information.  The court's ability to make such orders can be very useful for preserving assets and information, and limiting the damage caused by a former employee's unauthorised use of confidential information.  

Annual increase in sick pay, maternity pay, paternity pay, adoption pay etc

The government has published an Order confirming the annual increases in statutory maternity, paternity, adoption, shared parental and sick pay for the 2018-2019 tax year.  As of 1st April 2018, statutory maternity, paternity, adoption and shared parental leave will increase from £140.98 per week to £145.18 per week.  Maternity allowance will increase to the same rate on 9th April 2018.    From 6th April 2018, the weekly rate of statutory sick pay will increase from £89.35 to £92.05