December 21, 2015
This article aims to provide an overview of the most important legislative changes that have taken place during 2015, covering amendments to legislation and some cases that have had a significant impact on its interpretation.
Shared parental leave
Undoubtedly, the most significant legal development in 2015 has been the introduction of shared parental leave (SPL) (through the Children and Families Act 2014), in force in respect of employees whose child was due to be born or adopted on or after 5 April 2015. Employees with a minimum of 26 weeks’ continuous service as at the “relevant date” have the choice to end their maternity or adoption leave on a date they specify and share the untaken balance of that leave (as SPL) with their husband, partner, civil partner or the father of the child.
There is much more flexibility under the SPL scheme for employees to choose which parent takes leave, when they take leave and for how long, for example, each parent may take up to three separate periods of SPL at the same time as each other or at separate times. Any outstanding statutory maternity or adoption pay can also be shared between the employee and his or her partner, subject to certain eligibility conditions.
In line with the introduction of SPL, additional paternity leave is being phased out and is no longer available except where the child was due to be born or adopted before 5 April 2015.
However, the right for eligible fathers to take two weeks’ ordinary paternity leave within eight weeks of the birth of the child remains unchanged.
Adoption leave and pay
As from April 2015, the rules on adoption leave and pay have been further aligned with those of statutory maternity leave/pay. The previous 26 weeks’ service requirement for eligibility for statutory adoption leave was removed (but remains in place in respect of statutory adoption pay) and the first six weeks of statutory adoption pay is now payable at the rate of 90% of the employee’s average weekly earnings instead of at the statutory flat weekly rate as was the case previously.
Additionally, prospective parents taking part in the “fostering for adoption” scheme, and intended parents in a surrogacy arrangement, are now entitled to statutory adoption leave and pay, provided they meet the relevant eligibility conditions.
As from 5 April 2015, there is a right for adopters to take time off work to attend adoption appointments in advance of a child being placed with them for adoption. For primary adopters, this is paid time off for up to five pre-adoption appointments while for the secondary adopter, the right is to unpaid time off to attend up to two appointments. There is no length of service qualification.
The upper age limit of children in respect of whom eligible employees may take parental leave increased from age 5 to 18 in April 2015. This refers to the entitlement of employees with a minimum of one year’s continuous service to take up to a total of 18 weeks’ unpaid leave in respect of each child (not to be confused with the new “shared parental leave” scheme referred to above).
Eligibility to claim
Under s.83 of the Equality Act 2010, an individual is eligible to bring a complaint of discrimination to an employment tribunal if he or she is in “employment under a contract of employment, a contract of apprenticeship or a contract personally to do work”. In Kemeh v Ministry of Defence  EWCA Civ 91, the Court of Appeal drew a limit to this provision by holding that a black employee who worked for the British Army as a cook could not bring a claim of race discrimination against the Ministry of Defence on account of offensive comments made to him at work by an employee of a subcontractor that provided services to the Ministry of Defence. The Ministry of Defence could not be held liable for the behaviour of someone who was employed by one of their subcontractors.
Discrimination by association
As a result of wording in the Equality Act 2010, a claim for discrimination by association is only technically possible where it is one for direct discrimination or harassment. A recent judgment of the Court of Justice of the European Union (CJEU), however, introduces the prospect of claims for indirect discrimination by association. In CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia ECJ Case C-83/14, the CJEU ruled that the claimant, who ran a shop in a district in Bulgaria that was inhabited predominantly by Roma people, could bring a claim of race discrimination even though she herself was not Roma. The claim was that the respondent’s policy of placing electricity meters higher than the usual standard in Roma districts (in order to deter tampering) had a disproportionate adverse impact on Roma people, and that even though she herself was not Roma, she was disadvantaged as her shop was located in a district where the practice was applied. This judgment has considerable implications for UK law. Under the Equality Act 2010, an individual can only claim indirect race discrimination if he or she can show that a provision, criterion or practice applied by his or her employer has a disproportionate adverse impact on a particular racial group — and that he or she is a member of that group and has suffered that disadvantage. This case suggests that someone who is not a member of the disadvantaged racial group can claim indirect discrimination because of an “association” with that group (provided he or she has suffered the particular disadvantage).
In Coles v Ministry of Defence  EAT 0403/14, the Employment Appeal Tribunal (EAT) ruled that the right of agency workers (under regulation 13 of the Agency Workers Regulations 2010) to be informed of any permanent vacancies in the hirer’s organisation refers only to “information” about available vacancies. Agency workers do not have the right to any special treatment when applying for job vacancies.
With effect from 26 May 2015, the Small Business, Enterprise and Employment Act 2015 has rendered exclusivity clauses in zero-hours contracts unenforceable. Employees engaged on zero-hours contracts cannot lawfully be prevented from working elsewhere.
Deductions from wages
Where there has been a series of unlawful deductions from an employee’s wages, the employee can, within certain limits, bring a complaint covering all the deductions, so long as the claim is lodged within three months of the latest deduction. The Deductions from Wages (Limitation) Regulations 2014, which took effect in respect of claims brought after 1 July 2015, provide for a limit on backdated claims for deductions from wages of two years prior to the date of the claim being lodged (with limited exceptions).
This followed the controversial decision of the EAT in Bear Scotland Ltd and ors v Fulton and ors  UKEAT 0047, in which the EAT ruled (in cases concerning holiday pay) that where there has been a gap of more than three months between any two deductions, a backdated claim for any deductions that occurred before the three-month gap will be out-of-time, ie the employee will not be able to claim compensation in respect of such earlier deductions.
With effect from 26 May 2015, the maximum penalty of £20,000 for failing to pay the National Minimum Wage can apply in respect of each underpaid worker rather than being the total penalty irrespective of the number of employees who were underpaid.
Working time and holidays
In Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and anor  CJEU C 266/14, the CJEU ruled that time spent by mobile workers who have no fixed place of work travelling between their homes and their first and last customers of the day must be counted towards the 48-hour week. Such time cannot be classed as rest periods.
In Plumb v Duncan Print Group Ltd EAT 0071/15, the EAT ruled that, in light of EU law and the case law of the CJEU, an employee’s holiday leave that has been carried over as a result of sickness absence must be taken within a period of (at most) 18 months from the end of the holiday year in which the leave accrued — otherwise it is lost. The law does not require employers to allow carry-over without limit.
As from 10 March 2015, it is not permitted for an employer to force a job applicant, as a condition of employment, to utilise his or her right to make a subject access request under the Data Protection Act 1998 to obtain and provide a copy of his or her criminal record. To do so is a criminal offence that can lead to an unlimited fine. Where an employer needs to check whether an individual has any criminal convictions in order to protect its business or its customers or clients, it should seek disclosure through the Disclosure and Barring Service (DBS) or (in Scotland) Disclosure Scotland.
There is an exception to the ban on enforced subject access requests where an individual’s criminal record is required by law or where its disclosure is justified in the public interest.
The CJEU issued an important ruling as regards the interpretation of s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992. This section states that the duty to consult representatives in the event of proposed redundancies arises where the employer proposes to dismiss as redundant 20 or more employees at one establishment within a period of 90 days. In USDAW and anor v WW Realisation 1 Ltd and ors ECJ Case C-801/14 — popularly known as the “Woolworths case” — the CJEU ruled that an “establishment” for the purposes of collective consultation under the EU Collective Redundancies Directive is the entity to which an employee is assigned. In most cases, this will mean the individual workplace (for example, office, shop or factory) rather than the business as a whole. Thus, where any single establishment employs fewer than 20 employees, collective consultation over proposed redundancies will not be required in respect of those employees.
Some of the legislative developments in 2015 have been of great importance and there is no reason to doubt that next year will produce further significant developments, to which we will all, no doubt, look forward!
Source: Croner-i, 25 November 2015