Gordons Legal Employment Update – 3 February 2017

In the absence of any hard-hitting, pivotal cases to report; this week’s Gordons e-Brief focuses upon speculative Brexit implications, a brief trade union clarification, guidance publications on workplace stress and pay reporting, and a number of public sector updates.

BREXIT, BREXIT, BREXIT

There have been a number of developments in regards to Brexit-related employment law this week, albeit speculative or academic ones:

Labour Immigration after Brexit

Firstly, the Migration Observatory at the University of Oxford has published a report on the tough immigration choices and compromises that lay ahead of the government. The report, entitled ‘Labour Immigration after Brexit: Trade-offs and Questions about Policy Design’ highlights the following as being key decisions:

• Whether the government will choose a uniform or fine-tuned approach to their migration policy: A uniform system would be much simpler and easier to enforce. However, a fine-tuned approach would allow tailoring to wider governmental objectives although at the cost of complexity which could be expensive to enforce and exploitable by pressure from organised interests.
• Whether to choose temporary v permanent migration: A temporary work-permit scheme would enable the government to meet employer demand when and as it is needed without adding to the long-term population. However, if all of the workers are temporary, there will be a constant need to train new workers as and when they arrive whilst losing skills, language capabilities and social connections on each rotation.
• Which low- and middle-skilled jobs to prioritise: The report also makes the prediction that low and middle-skilled work is most likely to be the main target of any policies to reduce EU labour migration. Difficult political decisions about which low and middle-skilled jobs to target will have to be made which ‘reach well beyond immigration policy’ but they will inevitably have to be made.

The report deals extensively with these decisions within likely governmental policy objectives. Although speculative, it is certainly an interesting read. The full report can be accessed here.

Brexit Impact Consultation

The Economic Affairs Committee is seeking to understand Brexit’s impact on the labour market and in particular how reliant the UK is on migrant labour. Some of the key issues that the Committee are inviting comment on are:

• What level of net migration is necessary for the UK labour market to function effectively?
• What would be the impact on wages, in different sectors, of controls on EU migration and further controls on non-EU migration?
• Is there a case for regional variation in immigration policy?

The Committee’s chairman Lord Hollick commented: ‘We are looking to understand what the impact of Brexit will be on the labour market and whether this is a threat or an opportunity to the UK’s economy.’

Fawcett Society Review

The Fawcett Society, the UK’s largest membership charity for women’s rights, are conducting a major review into UK sex discrimination laws in anticipation of any risks posed by Brexit. Headed by Dame Laura Cox DBE (retired High Court Justice and Gay Moon (equality expert), the review will also assess employment law and discrimination (including pregnancy discrimination, sexist dress codes and equal pay), family-friendly rights for parents and carers, and the public sector equality duty and specific duties.

Comment: Although the answer to almost all employment-related Brexit questions remains “we’ll have to wait and see”, the Migration Observatory’s report provides a useful speculative insight into what policy decisions we can expect. It also highlights the complications inherent in the government deciding which way the necessary compromises are going to swing.

The government’s White Paper on exiting the European Union is imminent which should provide even more answers. Some careful consideration of the make-up of your organisation in advance may help mitigate any nasty surprises when Article 50 is triggered.

TRADE UNIONS

In British Airline Pilots’ Association v Jet2 . com, the Court of Appeal (‘CofA’) held that if a provision related to ‘pay, hours or holiday’, as those terms are generally understood, then the statutory obligation to collectively bargain will apply to it.

By way of background, the claimant sought recognition by the defendant for collective bargaining purposes.  The defendant refused voluntary recognition and subsequently the claimant applied through the statutory process for recognition in respect of a Scheduling Framework for a Scheduling Agreement to replace the defendant’s rostering arrangements.  On 18 November 2010, the Central Arbitration Committee declared the claimant recognised for collective bargaining in respect of the statutory minimum of ‘pay, hours and holidays’ only.

The CofA held that there was nothing in the phrase ‘negotiations relating to pay, hours and holidays’ to suggest that it covers only proposals which if agreed would give rise to individual contractual rights.  It could not see any reason why Parliament should have intended artificially to exclude trade unions from negotiating about such matters; and there is nothing in the statutory language, or the context, to suggest, let alone compel, such a construction.

The CofA made a declaration that the proposals contained in the Scheduling Framework document properly formed the subject of collective bargaining within the meaning of paragraph 3(3) of Schedule A1, apart from the four sections it identified.  The sections that were not subject to collective bargaining included: 4.9 Provision of exclusive lounge area for pilots suitable for rest and relaxation; 9 ‘Positioning’ i.e. where pilots are transported to a location other than their home base for the start of duty; 13-15 Leave for reasons other than holiday entitlement e.g. maternity; and 22 Rostered detachments – i.e. allocating pilots to work for periods from different (often overseas) bases.

Comments: This case serves as a useful guidance in relation to what issues the negotiations need to cover, although it reminds us that it is an obligation to negotiate not of course, an obligation to agree. In addition, another recent case of Kostal UK Ltd v Unite, involved the employer receiving a financial penalty of £425,000 which shows the significant financial liability employers could be subject to in that case where the union was totally by-passed and offers were made to employees direct.

GUIDANCE PUBLICATIONS

Workplace stress

Trades Union Congress (TUC), in conjunction with the Health and Safety Executive, has published a new guide on dealing with workplace stress. It is designed for employers and union representatives to work in harmony in order to tackle workplace stress.

The causes of work stress are broken down into six categories:

• Demands (issues like workload, work patterns and the work environment)
• Control (how much say the person has in the way they do their work)
• Support (resources provided by the organisation, line management and colleagues)
• Relationships (includes promoting positive and dealing with unacceptable behaviour)
• Role (whether people understand their role and do not have conflicting roles)
• Change (how organisational change (large or small) is communicated)

The handbook is available to view here.

Gender Pay Gap Reporting

Draft guidance on managing gender pay reporting has been published by the Government and ACAS.  The guidance is designed to help employers comply with their obligations under the Equality Act 2010 (Gender Pay Gap Information) Regulation 2017.

As we have previously mentioned, businesses and voluntary and charitable organisations in Great Britain with more than 250 employees will have to abide by the new regulations. The draft guidance covers topics including: how to monitor gender differences; how workplaces contribute to it; and how to calculate the gender pay gap. In particular, the guidance details the following five steps which employers should take when calculating the gender pay gap:

• Extract the ‘essential information’
• Carry out the necessary calculations, including the mean and median gender pay gap
• Make a supporting statement to confirm that the published information is accurate
• Publish the gender pay information; and
• Implement plans to manage the gender pay gap, i.e. developing initiatives to encourage female mentoring and development.

The guidance is available to view here.

LEGAL UPDATES

In the public sector, there have been a number of further legal updates following on from the Gender Pay Gap Requirement extension from last week:

Public Sector Exit Payments

Section 41 of the Enterprise Act 2016 came into force yesterday (1 February 2017) which inserts provisions into the Small Business, Enterprise and Employment Act 2015. These provisions allow the Secretary of State to create Regulations capping exit payments in the public sector. The cap sets the maximum payment at £95,000 including pay in lieu or notice, redundancy and ex gratia payments.

Department of Education Apprentice Target

The Department of Education (DfE) have indicated that they want the public sector to recruit 200,000 apprentices by 2020. The new duty will be implemented on 1 April 2017 and will apply to public sector bodies with at least 250 employees. In addition, the Cabinet Office has outlined plans to meet their target of delivering 30,000 new apprenticeships by 2020. The plans include converting current vacancies into apprenticeships and enhancing the current scheme.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.