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Published 5 January 2018
Happy New Year to all our readers.
2017 was a busy year for HR and employment law practitioners and 2018 looks full of challenges too, with gender pay gap reporting and data protection regulation being top of many agendas in the first quarter.
With less than four months to go until the deadline for publishing gender pay and bonus gaps, the Equality and Human Rights Commission (EHRC) has published its draft enforcement strategy paper confirming that it will initially look to cooperate informally with those organisations in breach of the requirement to publish. The paper makes clear that they will use their wider enforcement powers to ensure compliance. They have also suggested they will post a list of compliant and non-compliant organisations on social media in the days around the publishing date. The EHRC are seeking views on its approach until 2 February.
The Government's "Fit for Work" scheme looks different in 2018: it is in a run off phase, leading to the closure of its referral and assessment service on 31 March 2018, following low referral rates. Employers, employees and GPs will continue to be able to use the Fit for Work helpline, website and web chat, which offer general health and work advice as well as support on sickness absence.
In unwelcome, but perhaps unsurprising, news, the latest statistics from the Ministry of Justice show that the number of employment tribunal claims has increased threefold from July to September 2017 compared with the previous quarter, following the ruling of fees as unlawful by the Supreme Court in July.
This month's alert covers the first consideration by the EAT of when it is unlawful for employers to go above the head of a recognised trade union in making direct offers to employees to bypass collective bargaining. We also look at a whistleblowing case where, unusually, an employer was able to show that an employee had raised concerns purely in self interest, and so was not protected as a whistleblower, and a case where the EAT considered when a tribunal should consider evidence about pre-termination settlement negotiations. We also cover a case of perceived disability discrimination.
The EAT has upheld an employment tribunal’s decision that an employer offered employees unlawful inducements to cease collective bargaining when it directly offered them a package of terms and conditions, going over the head of the recognised trade union.
In this case the EAT upheld an employment tribunal decision that a police officer, who was turned down for a transfer because of hearing loss had suffered direct discrimination because of a perceived disability.
The High Court (Langstaff J) handed down a significant decision holding Morrisons supermarkets vicariously liable for the criminal actions of a rogue employee who leaked employee personal data on the internet.
In this case, the EAT has held that a tribunal can consider evidence of protected conversations where the effective date of termination is in dispute.
In this case the EAT held that an employee who raised compliance issues purely out of concern for her own liability did not make a qualifying disclosure, so was not protected as a whistleblower.
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