Employment Law Update – May 2020

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We are pleased to provide you with an employment law update for May 2020 from our legal partners Herrington Carmichael.

This is a key note summary of some of the main developments in employment law in the last month.

1. Legislation

On 6th April 2020, a number of statutory changes came into force. A summary of these are:-

• Parental Bereavement Leave – employees now have the right to take 2 weeks; statutory leave if their child dies under the age of 18 or is stillborn after 24 weeks of pregnancy.  Employees and workers with at least 26 weeks’ service may also be entitled to receive Statutory Bereavement Pay at a rate of £151.20 a week, or 90% of the employee’s average weekly earnings – whichever is lower.

• Section 1 Statement of Particulars – the right to receive a statement of particulars of employment, setting out basic terms, has been extended so that all employees and workers must now be provided with a statement at the start of their employment. The changes also introduce additional details to be included.

• Taxation of Termination Payments – termination payments paid to employees under a settlement agreement following the termination of their employment are now subject to class 1A National Insurance Contributions for any amount exceeding £30,000.

• National Living Wage – the level to be paid for the Living Wage has increased. 

2. Ambiguity in Dismissal – Extension of Time

The Court of Appeal has held that ambiguity in a letter terminating employment allowed an extension of the limitation period to pursue claims for a severely dyslexic Claimant.

Following a disciplinary process, the Claimant’s employer made the decision to dismiss him and telephoned him on 29 June 2017 to inform him. The Claimant was also informed that he would be receiving a letter containing the outcome. This letter was received by the Claimant on 6 July, and he took this to be his effective termination date. The employer argued that it was not reasonable and his actual dismissal was on 29 June which meant any claim was not issued in the correct time period. Considering the Claimant’s dyslexia and ambiguous wording of the dismissal letter, which was described as “unclear and contradictory”, the Court allowed an extension of time. This meant that the Claimant was able to pursue his claims.

This case serves as a reminder to employers to be clear in communications to employees, carefully consider the effects of any disabilities, and assess whether any reasonable adjustments could be made. This will allow for a fair, clear and transparent process with reduced risk of litigation.

3. Vicarious Liability in a Deliberate Data Breach

The Supreme Court has found that an employer was not liable for a data breach which was deliberately caused by one of their employees. This is the continuation of the case of WM Morrison Supermarkets plc v Various Claimants, and the decision means that employers are now unlikely to be found liable for the acts of their employees in this context. However, this does not mean that employers can disregard their obligations under the Data Protection Act 2018.  Controls and clear standards are still necessary to minimise the risk of a data breach.

In the case, a rogue employee deliberately leaked data concerning the payroll information of thousands of employees. The employees who had their data leaked issued a claim against Morrisons. The Court held that the leaking of the payroll data did not fall within the employee’s field of activities, and it was not an act he was authorised to do in his employment. The employee’s act of causing the data breach was not closely connected to his job and therefore could not be fairly and properly regarded as being made by the employee acting in the ordinary course of his employment. Morisons was therefore held not to be liable for the breach.

Even though this was an escape for Morrisons, it is still sensible for employers to ensure data compliance and that there are clear guidelines to the employee about what they are, and are not, allowed to do with personal data. 

4. UK Points Based Immigration System

The Government has issued further guidance on a change to the points-based system of immigration for skilled migrant workers. From 1 January 2021, after the UK’s departure from the EU, it is proposed that this new system will take effect. Employers who anticipate the need to hire skilled migrant workers are encouraged to be pro-active and take action sooner rather than later.

Employers who are not currently approved by the Home Office to be a sponsor, but anticipate wanting to sponsor skilled migrant workers are encouraged to apply to become an approved sponsor. The application process can take several weeks.  So to ensure your business is ready, employers are encouraged to consider applying now.

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