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HR News Round-up 

December 2015 
 
As 2015 draws to a close, we take a quick look at some of the main HR stories that have grabbed the headlines this year… 
 
... and a look ahead to what is coming up in 2016. 
The ‘Obesity crisis’ is often quoted in news connected with health and well-being of people living in the United Kingdom and especially amongst children. Following the Walker v. Sita Information Network Computing Limited, it was established that when obesity resulted in medical conditions which impaired an individual’s ability to carry out normal day-to-day activities, then obesity constitutes a disability and is covered by the Equality Act 2010. More recently in the European Court of Justice came the case of Karston Kaltoft, who claimed that he was dismissed from his job as a childminder because he was ‘too fat’. The ruling from the ECJ, which is binding on all EU members was that “if the obesity of the worker ‘hinders the full and effective participation of that person in professional life on an equal basis with other workers’, then obesity can fall within the concept of ‘disability’. This ruling has subsequently been used in the UK in the case of Bickerstaff v. Butcher, which found that the claimant had been harassed by his colleagues at work and in particular by Mr Butcher, because of his obesity and this therefore constituted ‘disability harassment’. 
 
In light of these developments, employers should ensure that their HR Policies afford appropriate protection to employees who are classified as obese and who therefore could have a disability as defined within the Equality Act 2010. 
 
Another harassment case in the headlines this year involved sexual harassment; with a mixed outcome for the claimant. The Tribunal in the ‘unnamed’ case ruled that a male Line Manager recreating a sexually suggestive scene from the movie ‘Ghost’ with another male at an office party, did not constitute sexual harassment against a female worker who witnessed it. However, the Line Manager, who it was stated had a ‘predilection for innuendo’; was found to have committed several other acts of sexual harassment against the female worker when he had made comments about her cleavage and told her to wear a short-skirt and low-cut top when pitching to a potential client. 
Figures released following a written answer in Parliament show that only 350 Companies have so far adopted the use of ‘Employee-Shareholder’ contracts; a fraction of the 6,000 Companies that the Department of Business, Innovation and Skills had assumed would take them up. The ‘employee-shareholder’ contracts were introduced by the Coalition Government in September 2013, despite some opposition to their introduction. These contracts require employees to relinquish some of their employment rights including claims for most forms of unfair dismissal and right to receive statutory redundancy pay, in return for shares in the Company. It would seem that most Companies are preferring to stick with established and conventional employee share schemes, which offer some tax benefits as well as allowing employees to retain all of their rights ~ despite this though, there does not yet appear to be any suggestion that these employee-shareholder contracts are about to be scrapped entirely. 
Some of you will probably remember shopping at Woolworths until their demise in 2009; however, many of you probably won’t realise that since the closure of the last store, there have been on-going legal wrangling over the manner in which staff were consulted over the closure of the Company. The issue at hand is ‘what constitutes an establishment?’; at the time of the closure Woolworths treated each of its stores as a single establishment and consulted with the staff on the basis of the number of staff affected within each store – meaning that some of the smaller stores were closed without much consultation having taken place. USDAW (Union of Shop, Distributive and Allied Workers) disputed this approach and claimed that Woolworths in its entirety, was in fact the ‘establishment’, meaning that they should have conducted a full collective consultation with staff over at least 90 days, as more than 100 people were being made redundant within 90-days. 
 
Having the reached the Court of Appeal in the UK, the case was referred to the European Court of Justice to determine ‘the proper meaning of establishment’ under the European Directive on Collective Consultation and in 2015, they gave their ruling; determining that the ‘requirement for collective consultation is triggered when an employer is proposing to make 100 redundancies at one establishment, not across the entire undertaking’. This then appears to support the position taken by Woolworths at the time. The case has now been returned to the Court of Appeal in the UK who will now have to apply this ruling to the Woolworths case and determine if the Employment Tribunals were correct in taking the view that individual stores to which employees were assigned were separate establishments. 
 
It seems likely that this case is now nearing an end, but we will need to wait until 2016 to hear what the final verdict will be… 
The Gender Pay Gap is often in the news and this year has been no exception; figures released suggest that the gender pay gap now amounts to female employees working for the equivalent of 57 days per year without pay. In April 2015, the gap between the wages of male and female employees stood at 9.4% compared with 9.6% in April 2014, this amounts to approximately £100 per week and it has been suggested by the Trades Union Congress (TUC), that if work towards closing the gender pay gap continues at its current pace, it will be 50-years before pay parity is achieved. 
 
Section 78 of the Equality Act 2010 is a clause which enables the Government to require Companies to publish data on male and female employee’s pay rates. Up until now, this has not been formally enacted other than as a voluntary measure; however, the Government has now consulted on plans to require larger companies (over 250 employees) to publish this data and it is likely that regulations concerning this will come into force in 2016. 
 
Following on from this; 2016 will also see the ruling from the Employment Tribunal in the Brierley and others v. Asda Stores case. This is a group claim in which both male and female employees working within retail stores are claiming that they should receive equal pay with the jobs of colleagues working in distribution centres, as they are undertaking ‘work of equal value’. A similar case is also pending for employees working within Sainsbury’s. 
The announcement by the Chancellor in his July Budget Statement that the Living Wage would be introduced from April 2016 prompted a lot of debate over the summer. The living wage will be payable to workers aged over 25 years and will be set at £7.20 per hour, rising to £9.00 per hour by 2020. Employers have reacted very differently to this news; some have announced that they will pass on the increased salary costs to customers by way of price rises and others have indicated that it will impact on their recruitment plans and current staffing levels, with some suggesting that they may have to reduce their workforce in order to meet the costs of paying eligible staff the increased rate. The National Minimum Wage will continue in its current guise for employees up to the age of 25 and currently stands at £6.70 per hour for those aged 21 and over. It is likely that the actual impact of the living wage will not be felt until the summer, but we will continue to monitor this and report back as we get closer to its implementation. 
No sooner had the Shared Parental Leave provisions come into being, than the Government announced it was planning to extend this to Grandparents with effect from 2018. Shared parental leave allows eligible employees and their partners to share the entitlement to leave and/or pay following the birth or adoption of a child and after the two-weeks of compulsory leave had been taken. Employees wishing to take shared parental leave have to adhere to deadlines and time-frames when making an application and are also required to make a declaration of their partner’s eligibility to share the leave with them. Once they have completed the process though, they can split the leave as they choose, provided that it is taken in blocks of not less than one-week. The intention behind extending this leave to Grandparents is to provide additional support to parents, in particular, single parents who may need to return to work following the birth/adoption of the child. Although it has been crudely summarised here, shared parental leave brings with it, one of the most complicated processes for employers to manage and critics have suggested that extending this right to Grandparents will prove to be an administrative nightmare to manage in the future. There is a little time before it this extension is planned, but we will continue to monitor this and provide updates and guidance over the coming months… 
In 2013, the Government introduced a fee structure for claimants wishing to bring a claim in an Employment Tribunal; with an initial fee of £300 being applied for making the application and a further £900 applied if a settlement cannot be reached following mediation by ACAS. The fees prompted widespread criticism from some areas and in particular Unison, who have sought to challenge their introduction through the Courts on a number of occasions. In 2015, their appeal against the High Court’s ruling proved unsuccessful and in 2016, they will make one further attempt to challenge the fairness of fees, when they will take their claim to the Supreme Court. They are perhaps bolstered by the fact that, whilst the Court of Appeal dismissed their claim, they did state that the decline in claims was ‘sufficiently startling’ to merit a review to prevent individuals from being priced out of bringing a claim. 
 
Meanwhile, in June the Government announced that it would be undertaking its own review into the impact following the introduction of fees; although the timing of this announcement coincided with the Appeal hearing, it was in fact a commitment that had been made by the Government at the time that the fees were introduced. Their review was to consider a range of evidence including; data on case volumes, progressions & outcomes, qualitative research on the views of Courts and tribunal users, general trends in the number of cases being heard at Tribunal, the impact of an improving economy on the number of dismissals generally, the impact of other changes in employment law and any other changes which may have influenced behaviours. At the time of writing, nothing had been reported on the progress with this review and we expect that an update or outcome will be published in 2016. 
This year also saw the introduction of the ‘Fit for Work Scheme’; the scheme is a free service which can be accessed by all employers once an employee has been absent from work for 4 or more weeks. Employees have to consent to being referred to the scheme and if consent is given, they will generally have a telephone review with an Occupational Health Adviser, although a face-to-face meeting may be arranged in some exceptional circumstances. Following the review, a ‘return to work’ plan will be produced and submitted to the employer – who can choose whether or not they want to implement the plan. The scheme will undoubtedly provide some benefit to employers and employees, but we will have to wait for initial usage and take-up figures to be published to find out how successful or otherwise the scheme is… 
What to watch for in 2016… 
 
The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 will come into force on 11 January 2016; this will prevent employers from including unfair contractual terms in zero-hours contracts preventing workers from seeking work elsewhere at times when they are not needed for work by the employer 
New rules on specific disclosures in relation to employment references for those applying for specified roles in the Finance Sector, will be introduced from 7 March 2016 
Mandatory Gender Pay Gap reporting for employers with over 250 employees will be introduced during 2016, though an exact date has not yet been given for this 
The National Living Wage for people aged 25 and over will be introduced from 1 April 2016 
Statutory payments for sickness, maternity, paternity, adoption, shared parental leave will be frozen at 2015/2016 rates (6 April 2016) 
The personal allowance for Income Tax will be increased to £11,000 from 6 April 2016 
Employer National Insurance Contributions for Apprentices under the age of 25, will be abolished from 6 April 2016 
Skilled migrant workers who apply to settle in the UK from April 2016 under the Tier 2 General & Sportsperson categories of the points-based system are required to earn at least £35,000 from 6 April 2016 
 
Other things to watch out for during the year, but for which no date has yet been specified, include: 
 
Immigration Bill introducing labour market enforcement agency and skills charges on employers who use migrant workers; this will introduce a range of measures to tackle illegal working 
Caste will be added as an aspect of Race under the Equality Act 2010 
EU General Data Protection Regulation comes into force 
The provision of the Small Business, Enterprise and Employment Act 2015, which provides increased protection for NHS Whistle-blowers will be introduced 
Trade Union Bill reforms, which will change the voting thresholds for Unions wishing to take strike action 
Our usual round-up of news will return in January 2016 and in the meantime, please accept our best wishes for a happy and prosperous New Year. 
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