Employment Matters September 2016 - DAC Beachcroft

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Employment Matters September 2016

Published On: 6 September 2016

August has seen some interesting cases. HR professionals should take particular note of the Dronsfield case below, which is the second case in the last twelve months where the extent of HR's involvement in a disciplinary procedure threatened the fairness of a dismissal. Employers may also be concerned about a disability discrimination claim where the EAT held that pay protection may be a reasonable adjustment. An Employment Tribunal has decided that voluntary overtime payments should be reflected in holiday pay, provided that such payments amount to "normal remuneration".

This is a first instance employment decision so it is not binding law. However,  the case will be worrying for employers as it shows the direction the wind is blowing regarding regularly worked voluntary overtime. Despite calls from employer representatives to delay the introduction of the apprenticeship levy, the government has now confirmed that it will be introduced on 6 April 2017. The government has issued further details on how the levy will work together with proposals for a new funding model. Please see our alert on this here.

The government has indicated this month that the timescale for the publication of the regulations on gender pay gap reporting has been delayed. However, we still expect that the first relevant date to analyse pay will remain as April 2017 as previously announced, meaning that the first gender pay gap reports will be due by the end of April 2018. Finally, we report below on the changes to taxation of termination payments which will come into effect in April next year.

Unfair dismissal: How to "vanish" a dismissal

Unfair dismissal: The role of HR in disciplinary investigations

In this case, the EAT considered whether an employee whose dismissal was overturned on appeal could claim unfair dismissal.

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In this case, the EAT considered whether changes to an investigation report following HR's involvement might mean that the dismissal was unfair.  

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Discrimination: Sham job applicants

Tax: Taxation of termination payments to be changed

In this case, the ECJ held that individuals who apply for jobs only to seek compensation for discrimination, and not to obtain employment, will not be entitled to compensation.

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The government has published its response to its 2015 consultation on simplifying the taxation of termination payments, together with draft legislation for further consultation.

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Disability discrimination: Pay protection may be a reasonable adjustment

Whistleblowing: Definition of "worker"

In this case, the EAT held an employer might be under an obligation to continue to pay an employee their previous salary when, because of their disability, they have been moved to a lower paid job.

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In this case, the EAT considered whether the extended definition of "worker" which applies in whistleblowing legislation would apply to an agency worker bringing a claim against the agency's client, a hospital trust, arising out of protected disclosures made to the trust.

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