Legal News

Employment Tribunal Reform Project: Update for ET Professional Users ( January 2024) Employment Tribunal Reform Project: ELA Webinar Q& A—30 November 2023 What are the practical implications of this development? The central message is that HMCTS is still advancing—albeit rather slowly—with the roll-out of its modernisation programme. My HMCTS remains live only in the early adopter locations ( Glasgow, Leeds, Bristol and Nottingham), and the next stages will be trialled exclusively in those venues. My HMCTS will be extended to all claim types during January and February; thereafter, for professional users in those early adopter sites, the current online submission route will give way to submitting ET1 claims via the portal (no fixed date, but indications suggest around March). Practitioners should familiarise themselves with the My HMCTS portal and register if they have not already done so. As highlighted in questions raised at the 30...

We contend that, within employment, person-specific explainability is essential. Our review of the main types of AI safeguards, alongside a case study on how local explainability operates in reality—see: here, shows that such a measure can both build confidence in AI and harness its capacity to detect and mitigate bias and discrimination. In employment settings, such personalised transparency is central to automated decision-making in this context. The evolution of AI regulation AI’s march into workplace decision-making has been checked by worries about safety and, notably, the risk of bias and discrimination. Used well, AI can enable swifter, more efficient and even higher-quality determinations. Yet it can also entrench bias and discrimination within decisions—see: Discrimination and bias in AI recruitment—a case study. Governments and policymakers worldwide are examining a range of safeguards to bolster AI safety. Existing and draft frameworks tend to favour different tools aimed at...

Sullivan v Isle of Wight Council [2024] EAT 3 What are the practical implications of this judgment? This decision underscores that whistleblowing detriment claims are restricted to ‘workers’ as defined, and do not ordinarily extend to job candidates, save for those applying to specified NHS employers under the Employment Rights Act 1996 ( NHS Recruitment— Protected Disclosure) Regulations 2018. It further confirms that a Gilham-style approach—invoking Article 14 (freedom from discrimination) read with Article 10 (freedom of expression) of the European Convention on Human Rights to widen protection to applicants—will not prevail, particularly because being a job applicant does not amount to an ‘other status’ for the purposes of Article 14. What is the relevant background? Background law All workers are entitled to pursue a claim for any detriment suffered due to an act or omission by their employer carried out on the ground that the...

A notice has been placed on the Sponsor Management System by the Home Office, confirming that from 6 April 2024 the department is...

In this issue: Working time Brexit, retained EU law and assimilated law Public sector Pay Pensions Tax Prohibited conduct (discrimination etc) Employee rights to be informed and consulted Data protection and employee information Industrial action Corporate governance Immigration Daily and weekly news alerts New and updated content IRLR Highlights — February 2024 Dates for your diary Trackers New Q& As Working time Video analysis— Should annual bonuses be included when calculating holiday pay? Launching our concise series on uncertainties created by the recent statutory changes to holiday entitlement and pay, Sarah Watson, barrister, and Cathy Hoar, solicitor, of the Lexis+® UK Employment team, explore whether employers ought to factor annual bonuses into holiday pay calculations. A detailed written summary accompanies the video. See News Analysis: Video analysis— Should annual bonuses be included when calculating holiday pay? Brexit, retained EU law and assimilated law DBT publishes Retained EU Law ( REUL) parliamentary report The Department for Business and Trade has issued the Retained EU Law ( REUL)...

Employment Judge Rohan Pirani found that members of the First Division Association ( FDA)—the union for senior and middle-ranking civil servants—should have their claims against HM Revenue and Customs ( HMRC) struck out, as the matters they raised had already been resolved in group proceedings in which they participated. In a judgment issued on 10 January 2024 and only recently released, Judge Pirani said that attempting to re-argue the same points at this stage of the multiple constitutes an abuse on these facts. It was not, in itself, an abuse of process to lodge the claims initially; the problem arose only after the ruling in the group litigation, known as Newby, when the abuse issue emerged. The decision records that substantial numbers of grievances from members of the Public and Commercial Services Union, alongside other representative bodies, were lodged across numerous...

On 22 January 2024, Employment Judge Jennifer Young concluded that Open University academics instigated a 'call to discriminate' against Professor Jo Phoenix by issuing an open letter opposing her gender-critical research network. That discriminatory letter in turn also triggered a 'pile-on' directed at Phoenix, Judge Young expressly observed. Phoenix v The Open University ( ET/3322700/2021 & 3323841/2021) The judge found the university failed to secure an appropriate working environment for Phoenix, leaving her to weather the backlash within the institution. This failure amounted to a breach of the implied term of trust and confidence in her contract and ultimately prompted her resignation. According to Judge Young, the Open University did not shield Phoenix from the 'negative campaign' that followed thereafter the launch of her research network because it 'did not want to be seen to give any kind of support to academics with gender...

PD and MJ Ltd ( In Members' Voluntary Liquidation) v HMRC [2024] UKFTT 38 ( TC) HMRC issued assessments on Mr Thompson’s PSC totalling £294,306.68 for income tax and National Insurance contributions ( NICs) across four tax years, 2013–14 to 2017–18, asserting that the intermediaries legislation applied to his work on Soccer Saturday. At the time, the question of employment status was determined by the worker’s own PSC under ITEPA 2003, Pt 2, Ch 8, rather than by the hirer; under today’s framework, that decision would ordinarily rest with the hirer ( ITEPA 2003, Pt 2, Ch 10, ss 61K-61X), save for small private sector organisations. Consequently, any additional sums arising from a change in employment status fell on the PSC. By comparison, under the current regime, primary liability would have sat with the hirer, subject to any offset that might be...

To watch the video of their discussion, simply click here. A written summary of the issues examined, with onward links to our related materials, appears below. Why has the issue of whether annual bonuses should be taken into account when calculating holiday pay become a hot topic? Employers have typically (rightly or wrongly) left annual bonuses out when working out a worker’s holiday pay. Concern has arisen that the amended wording brought into the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833, from 1 January 2024, requires at least some annual bonuses to be factored into holiday pay in certain cases. What is an annual bonus? The reply may appear straightforward: it is a bonus paid once each year. Yet bonuses differ in nature, and that distinction could ultimately affect how we respond to the question of whether they ought to be included when...

Employment Appeal Tribunal Judge Murray Shanks stated the tribunal was justified in concluding that Nicolas Toure’s allegation that a colleague used a racial epithet was 'fictional', and that his readiness to forget it in return for promotion was 'tantamount to blackmail', although the tribunal’s rationale for dismissing his victimisation complaint was 'plainly wrong'. He noted the tribunal had been mistaken in stating Toure was not dismissed by Ken Wilkins Print Ltd; yet Toure’s contention that his sacking was retaliation for raising race discrimination 'could not possibly have succeeded', in any event, according to Judge Shanks in a judgment handed down on 17 January 2024......

With what it considers measured, targeted updates to the 2018 UKCG Code, the FRC aims to strike a balance: sustaining investor and stakeholder confidence in premium listed companies while keeping administrative and regulatory demands on businesses to the minimum required. Digital guidance linked to the 2024 UKCG Code is due for publication on 29 January 2024. Original news: FRC publishes revised UK Corporate Governance Code, LNB News 22/01/2024 18. The Financial Reporting Council has now issued its revisions to the UK Corporate Governance Code (the Code), intended to bolster transparency and accountability across UK companies and to underpin the UK’s growth and competitiveness... Why is the UKCG Code changing? On 24 May 2023, the FRC opened a consultation setting out 18 proposals to amend the 2018 Code, centred chiefly on building a stronger framework for prudent, effective risk management and internal controls. They also...

Prevention of sexual harassment in the workplace Spurred by the Me Too movement, tackling sexual harassment at work has moved up the agenda for a range of sectors and industries, for employers generally, and across political parties. In turn, employers have shifted culturally in how they perceive and address allegations, responding in a far more proactive and forceful way... While clear strides have been made, the government (and any future Labour government) accepts there is more to achieve. The data bears this out: in 2023 the Fawcett Society reported that 40% of women encounter sexual harassment in the workplace... To drive more active prevention by employers, the government has passed the Worker Protection ( Amendment of Equality Act) Act 2023. This legislation creates a new duty on employers to take ‘reasonable steps’ to stop the sexual harassment of their employees, as defined by the Equality Act 2010,...

In this issue: Working time and flexible working Tax Financial services and banking: employment issues Maternity, parents and carers Industrial action Settlement Employment Tribunals Immigration New and updated content Daily and weekly news alerts Dates for your diary Trackers New Q& As Working time and flexible working Acas publishes a revised Code of Practice on requests for flexible working The Advisory, Conciliation and Arbitration Service ( Acas) has released its updated Code of Practice on handling requests for flexible working. The revised Code is set to take effect in April 2024; until then, the existing Code will remain in force. The Draft Code was first issued for consultation by Acas in July 2023, with the consultation closing on 6 September 2023. See: LNB News 11/01/2024...

Bathgate v Technip Singapore PTE [2023] CSIH 48 What are the practical implications of this case? For a considerable period there has been real doubt about whether prospective claims that an employee may later have against an employer, but which have not yet materialised, can, with sufficiently precise language, be validly released within a settlement agreement. Conflicting EAT authorities emerged, with: Lady Smith in Hilton UK Hotels v Mc Naughton holding that future claims were capable of compromise, and Lord Summers in this case ( Bathgate) concluding they were not. There was also a lack of agreement as to how far the Court of Appeal’s decision in Hinton supported either viewpoint. In Mc Naughton, Smith LJ cited Howard as authority that the parties may agree that a statutory compromise agreement (now settlement agreement) should cover future claims of which an employee did not and could not have had...

In this issue: Key developments Status and worker categories Pay Tax Unfair dismissal Settlement Employment Tribunals Immigration Northern Irish materials Daily and weekly news alerts Dates for your diary Trackers Key developments UKSC Deputy President gives speech on the law and AI On 30 November 2023, Lord Hodge, Deputy President of the Supreme Court, delivered an address at De Montfort University, Leicester on the law and artificial intelligence ( AI). He underlined the need to refresh legal rules to recognise and regulate emerging technologies, and pointed to the chances these innovations offer to strengthen both the legal system and the justice system. See: LNB News 03/01/2024 44. Employment Law: Looking ahead to 2024—video analysis In this video, Tony Gould, Professional Support Lawyer within the Lexis Nexis Employment team, previews employment legislation scheduled to come into force in the...

Revenue and Customs Commissioners v E. On UK plc [2023] EWCA Civ 1383, [2023] All ER ( D) 34 ( Dec) What are the practical implications of this case? The judgment offers a clear review of the authorities that may bear upon the sole statutory issue raised here: whether the sum in dispute amounts to earnings ‘from’ employment. In that setting, the Court of Appeal elucidated the ratio in Tilley v Wales [1943] AC 386 and marked out the limits of the ‘replacement principle’ from Mairs v Haughey [1994] 1 AC 303. With those propositions settled, and taking the First- Tier Tribunal’s findings about the nature of the payment and the circumstances in which it was made, the statutory question admitted of a straightforward resolution. What was the background? The respondent sought to lower the expenses tied to running its defined benefit scheme. It put forward several...

GOV. UK: Holiday pay and entitlement reforms from 1 January 2024 What are the practical implications of this guidance? As trailed, the government has now issued guidance to sit alongside the amendments to the Working Time Regulations 1998, SI 1998/1833, introduced by the Employment Rights ( Amendment, Revocation and Transitional Provision) Regulations 2023, SI 2023/1426, taking effect from 1 January 2024. For details, see News Analysis: Calculations for holiday entitlement and pay to be reformed and LNB News 09/11/2023 32. The guidance appears to have a narrower impact than many expected because: it makes clear that it does not offer conclusive answers to every individual question......

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Auto-enrolment and penalty notices—a reasonable excuse for non-compliance? ( A& P Trading Solutions v Pensions Regulator) A& P Trading Solutions Ltd v Pensions Regulator [2023] UKFTT 772 ( GRC) What are the practical implications of this case? Under section 44 of the Pensions Act 2008 ( PA 2008), an employer may appeal to the FTT against a determination of the Pensions Regulator issuing an unpaid contributions notice ( UCN), a fixed penalty notice, or an escalating penalty notice. In theory, an employer can advance a reasonable excuse for failing to comply with a UCN, which could result in penalty notices being set aside. In reality, attempts to overturn such notices almost always fail. In this matter, the reference relied on the oft-raised contention of reasonable excuse arising from non-receipt of the relevant correspondence. Such submissions must be assessed in light of the facts that (i)...

Raystra Healthcare Ltd v HMRC [2023] UKFTT 496 ( TC) HMRC issued an assessment to claw back amounts the taxpayer company had obtained under the Coronavirus Job Retention Scheme ( CJRS) for six employees who were not shown on an RTI submission before the 19 March 2020 deadline. A software upgrade to the company’s RTI system in November 2019 inadvertently left it in ‘test’ mode, with the result that RTI returns stopped being sent from that date until HMRC informed the company of the fault on 24 April 2020. On receiving that notification, the company filed the outstanding RTI information the same day, and later went on to apply for, and receive, payments under the CJRS. The central issue advanced in the company’s appeal was that, absent the software problem, payments of earnings to the six affected employees would have been included in......