Welcome to the January edition of Up to Date. Read on for a roundup of the latest news and developments in relation to employment and immigration

The countdown begins: Getting your gender pay gap reports ready for publication

The Equality Act (Gender Pay Gap Information) Regulations 2017 (Regulations) came into force on 6 April 2017, requiring all private and voluntary sector employers with 250 or more employees to publicly report a range of gender pay information each year.  The first reporting deadline falls on 4 April 2018, leaving employers with only two months to get their gender pay information into shape.  We look at how the land currently lies, what you can do to prepare for the publication of your results and measures to consider for the future.

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Gender pay gap reporting: The EHRC publishes proposals for enforcing the regulations 

The Equalities and Human Rights Commission (EHRC) has published a draft policy paper outlining how it will seek to enforce the gender pay gap reporting regulations.  The EHRC's primary focus in the first year will on employers who have failed to publish their results.  However, they indicate that, if capacity allows, they will also scrutinise the accuracy of the results and take enforcement action where necessary.  In a worst case scenario, a non-compliant employer would have to comply with an EHRC investigation, have that investigation report made public and be forced to comply with an unlawful act notice or face an unlimited fine.

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Whistleblowing: Disclosure for self-interest rather than public interest

In an article first published by Thomson Reuters, Managing Associate, Annabel Mackay, considers the recent EAT decision in Parsons v Airplus International Ltd. Since the Court of Appeal’s decision in Chesterton Global Ltd v Nurmohamed, some commentators consider that it has become more difficult to challenge whistleblowing complaints on the grounds that the disclosures do not meet the public interest test. However, the EAT’s decision in Parsons indicates that disclosures that are made solely for self-interest will not qualify for protection.

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Whistleblowing: Can a worker claim post-dismissal losses in a detriment claim?

In Wilson Solicitors LLP and others v Roberts the Court of Appeal has held that workers are entitled to claim post-termination losses in respect of pre-termination detriments. This is the case even if the intervening termination was lawful. The termination does not break the chain of causation. To succeed, a claimant will need to show that their losses would not have arisen but for the earlier detrimental treatment.

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Outsourcing: Employees of company providing outsourced services were not also workers of the end user 

The Central Arbitration Committee has rejected a trade union's application for statutory recognition by an end user in respect of a bargaining unit composed of individuals providing services under an outsourcing contract. The individuals were not "workers" for the purposes of the relevant legislation due to the absence of a contract between them and the end user. The CAC was not prepared to say that because the end user substantially determined the individuals' terms and conditions they were the "employer". To do so would extend the definition of employer, which was a matter for Parliament, not the CAC (Independent Workers' of Great Britain and University of London)

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Unfair dismissal: Employee fairly dismissed for refusing to work after discriminatory demotion

The Court of Appeal has found that an employee cannot refuse to work due to a discriminatory demotion. The Court concluded that discrimination does not, in itself, give an employee an absolute right to refuse to work. Whilst in some cases a refusal to work may be justifiable, this is a case of fact and degree.

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GDPR: The human factor – risks of automated processing of personal data under the GDPR

Employers now only have a few months to prepare for compliance with the General Data Protection Regulation (GDPR). In this article, Managing Associates Annabel Mackay and Beatrice Duke consider the risks for employers of automated processing of personal data under the GDPR.

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Immigration: Important deadlines and updates for employers

Our Immigration team outlines the key immigration-related deadlines and changes for employers to note:

• Annual certificate of sponsorship (CoS) renewal process: employers have until 5 April 2018 to apply to renew their allocations of Tier 2 (General) unrestricted CoS and Tier 2 (ICT) CoS.
• Increased numbers of applications for restricted CoS: in December 2017, the number of applications for restricted CoS allocations was exceeded. We predict that the limit will continue to be exceeded until it resets in April 2018.
• Updated Tier 2 Guidance: on 11 January 2018, the Home Office published an updated version of its Tiers 2 and 5 guidance for sponsors. We summarise the key changes.

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