Employment, Immigration & Pensions Update - May 2017

The Employment Appeal Tribunal has recently given its decision in one of the long-running holiday pay cases (Fulton v Bear Scotland Ltd). It confirmed that a gap of more than three months between non-payments or underpayments of wages breaks the ‘series’ of deductions for the purpose of bringing an unlawful deduction from wages claim, thereby potentially further limiting the opportunity for claimants to claim backdated holiday pay.

Private and voluntary sector employers with 250 or more employees have begun publishing mandatory gender pay gap data on the government website. The published data includes annual figures for both the mean and median gender pay gaps for hourly rates of pay and bonuses, the proportion of men and women receiving bonuses and the number of men and women within each salary quartile.

The Employment Appeal Tribunal has held that a job applicant with Asperger’s Syndrome suffered discrimination when she was required to sit a multiple choice psychometric test as part of a recruitment process.

In O’Brien v Bolton St Catherine’s Academy, the Court of Appeal has provided useful guidance on effecting a fair and non-discriminatory dismissal for long-term sickness absence. Tribunals will consider evidence on the severity of the impact of the continuing absence on the employer when deciding if dismissal was justified at a particular time.

The Pensions Regulator (‘tPR’) can and will fine employers who do not comply with their automatic enrolment obligations, as Johnsons Shoes Company recently found out. After tPR has asked an employer to confirm its compliance with the automatic enrolment requirements, if it is not satisfied a company is compliant, it will issue a fixed penalty notice. Following this, failure to comply or respond can lead to escalating penalty notices and being “named and shamed” by tPR.