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30 October 2017

And finally a look forward to what’s happening in employment news for November 2017

The new Data Protection Bill, which will replace the current Data Protection Act 1998, has had its first parliamentary reading and is due to have its second reading on 10 October 2017. The Bill will bring the European General Data Protection Regulation standards into national law, ensuring that the UK’s data protection regime is in line with EU standards after Brexit. There will be more control for individuals over the use of their personal data, including new rights to move or delete data and to withdraw consent for its use. There will also be new criminal penalties and stronger sanctions for non-compliance. Employers should note that the new requirements are likely to involve substantial changes to data protection policies and procedures, including privacy notices, statements of consent, subject access request procedures and agreements with third party data processors.

The Department for Business, Energy and Industrial Strategy has published its response to the Green Paper consultation on corporate governance reform. This includes proposals for a number of new requirements for larger companies aimed at increasing transparency and accountability, including publication and justification of the pay ratios between CEOs and average UK workers; a public explanation of how directors take employees’ and shareholders’ interests into account; and a new public register of all listed companies with significant shareholder opposition to executive pay packages. The Government is also asking the Financial Reporting Council to introduce a new requirement in the UK Corporate Governance Code for listed companies to ensure employees’ interests are better represented at board level.

Following a period of consultation, the President of the Employment Tribunals has published Presidential Guidance on the principles for compensating pension loss, which has effect from 10 August 2017. In most cases, the Tribunals will compensate loss of occupational pension rights by simply aggregating the contributions the employer would have made to the claimant’s pension scheme during the relevant period of loss. In more complex cases, such as final salary schemes or career loss cases, a separate remedies hearing and expert actuarial evidence may be required, although the parties will be encouraged to agree the value of pension loss.

Following the Supreme Court’s decision that the fee system in the Employment Tribunal and Employment Appeal Tribunal was unlawful, details are still awaited from the Ministry of Justice of the procedures to be put in place for claims affected by the decision, including a refund scheme. In the meantime, it appears that Tribunals may allow claims to be presented out of time after they have initially been rejected or dismissed for a failure to pay the issue fee, on the basis that it is just and equitable to do so; and where claims were not brought at all because of the requirement to pay a fee. Employers are advised to undertake an audit of previous claims to check where fees have been paid, and to assess whether there are claims which employees or ex-employees may have been deterred from pursuing because of the prospect of having to pay a fee.

The Parental Bereavement (Pay and Leave) Bill was introduced into Parliament in July 2017. This will give parents who have lost a child a right to statutory paid bereavement leave to allow them time to grieve away from the workplace. The Department for Business, Energy and Industrial Strategy is consulting with employers, employee representatives and campaigners, and more specific details will be published when the bill has its second reading on 20 October 2017. Although this is a private members’ bill, it is supported by the Government and meets a Conservative manifesto commitment.

Acas has published new guidance for employers on gender reassignment discrimination. This follows a study carried out by the Institute for Employment Studies which highlighted a lack of knowledge about issues affecting transgender workers. The guidance covers key areas of employment where gender reassignment discrimination can occur, and provides advice on how to deal with the specific issues which may arise, such as supporting a trans employee, absence from work, developing trans inclusive policies, and handling complaints.

Following judicial consultation, the Presidents of the Employment Tribunals have updated the guidelines for assessing injury to feelings awards in discrimination claims (known as the ‘Vento bands). The lower band for less serious cases is now £800 to £8,400; the middle band is £8,400 to £25,200; and the upper band for serious cases is £25,200 to £42,000, although in exceptional cases this amount may be exceeded. It is up to the Employment Tribunal which band applies and where in the band the appropriate award should fall. These new limits will apply to claims presented on or after 11 September 2017. The bands will be reviewed again in March 2018 and then annually, with any changes coming into effect on 6 April each year.

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