Scotland

General News, Articles and Information from The POA North of the Border:

03.07.2014

Levy & McRae Newsbrief: June 2014

Indirect Discrimination: Proving Disadvantage

In a claim for indirect discrimination do members of a disadvantaged group have to show why they have suffered the disadvantage, in addition to the fact that they have done so?

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Flexible Working Regulations published

The Flexible Working Regulations 2014 SI 2014/1398 have now been published ahead of their coming into force on 30 June. The Regulations revoke the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002, thereby removing the stipulation that the statutory right to request flexible working is only available to parents of children under 17 (18 if the child is disabled) or to carers of adults.

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Queen’s Speech 2014: employment law implications

The Queen’s Speech was delivered on 4 June 2014. The government has made plans to introduce a number of bills that will affect employees and other workers.

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Burden of Proof

When dealing with a multitude of discrimination allegations, may employment tribunals go beyond the first stage of the burden of proof test to look at ‘the reasons why’ and should they look at the allegations individually or as a whole?

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Allegations of Bias

Should allegations of bias at an employment tribunal be dealt with by an application for a review (or reconsideration)?

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Public sector pay freeze did not constitute indirect age discrimination

An employment tribunal has dismissed claims by HM Revenue and Customs (HMRC) employees that the terms of the public sector pay freeze introduced in 2011 had resulted in their being indirectly discriminated against on the grounds of their age, contrary to section 19 of the Equality Act 2010.

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Associative Discrimination

Does an employer’s duty to make reasonable adjustments extend to an employee associated with a disabled person?

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Death of worker did not extinguish right to pay in lieu of holiday

In Bollacke v K + K Klaas and Kock BV and Co KG the ECJ has held that when employment is terminated by the death of a worker, his or right to be paid for accrued but untaken holiday under the EU Working Time Directive (No.2003/88) is not extinguished, but passes to the deceased’s estate.

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Penalty Clause in Employee’s Notice Period

Is a clause deducting a month’s salary for an employee’s failure to work their notice period a penalty clause?

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Employment Practices Bill 2014-15 published

The Employment Practices Bill 2014-15 had its first reading in the House of Lords on 10 June 2014 and a first draft has now been published.

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Contracts of Employment

Can an express contract of employment exist in the absence of an agreement to remunerate the individual for work provided to the company?

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Disclosure of ‘Spent’ Convictions

Is the obligatory disclosure of spent convictions for specified professions or persons working with children and vulnerable adults a necessary and proportionate interference with their Article 8 right to a private life?

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EAT gives guidance on correct approach for tribunals approached with confidential information

In Begraj and anor v Heer Manak Solicitors and ors the EAT has upheld an employment tribunal’s decision to recuse itself after the judge hearing the claim revealed that she had received confidential information about the parties from two police officers, which she had kept secret for a week. Although the EAT acknowledged that this was an extraordinary case, it went on to give guidance on how tribunals ought to deal with such a situation.

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Employment Status: Football Referee

Is a football referee an employee under the ERA 1996?

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Draft Equality Act 2010 (Equal Pay Audits) Regulations 2014 published

The draft Equality Act 2010 (Equal Pay Audits) Regulations 2014 were published on 19 June 2014. When brought into force, they will oblige tribunals to order employers who have been found in breach of equal pay law under the Equality Act 2010 to carry out equal pay audits.

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ECJ: transitional arrangements retaining age-based pay were justified

In Specht and ors v Land Berlin and other cases the ECJ has held that a German pay scheme for civil servants, under which salary was related to age, breached the EU Equal Treatment Framework Directive (No.2000/78). Although a new pay scheme, which removed the age criterion but maintained existing civil servants’ age-based pay, was also discriminatory, it was justified by the German Government’s aim of protecting the acquired rights of existing civil servants.

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Constructive Dismissal and Affirmation of Contract

Can delay in resigning in and of itself amount to an affirmation of a breach of contract?

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Changes to fee remission system from 30th June

Her Majesty’s Courts and Tribunals Service (HMCTS) has confirmed to IDS that it is making a number of changes to its fee remissions form and guidance. These changes are based on feedback from customers and stakeholders and are intended to simplify the application process for users. They will apply to fee remission applications from 30 June.

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Reimbursement of Fees

HHJ Eady QC in Horizon Security Services Limited v PCS Group has laid down the following general principles in relation to appellants recovering EAT fees upon being successful on appeal:

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