Policy News Journal - 2016-17

The Chartered Institute of Payroll Professionals ……………………………………………………………Policy News Journal

Abuse of Migrant Workers not Unlawful Discrimination 28 June 2016

Does abuse of migrant domestic workers, on grounds of their status as vulnerable migrants, amount to unlawful discrimination?

No, held the Supreme Court in this recent judgment.

Two Nigerian nationals, both in the UK under domestic migrant visas, were mistreated and abused by their employers (see paras 3, 4 and 8 of the judgment for the description of how they were treated). After escaping, they brought successful claims under the minimum wage (and other similar) legislation. They also sought compensation under the Equality Act, asserting they had been directly or indirectly discriminated against on grounds of their nationality. The Supreme Court disagreed. It was not direct discrimination because the mistreatment was due to their vulnerable migrant status, not because of their nationality. Nor was it indirect discrimination, because there was no ‘provision, criterion or practice’ applied by the employers to their employees. Baroness Hale suggested, in a concluding paragraph, that Parliament might consider whether employment tribunals ought to be given jurisdiction to award compensation under section 8 of the Modern Slavery Act to grant recompense for ill-treatment meted out to vulnerable migrant workers.

With thanks to Daniel Barnett’s employment law bulletin which provided the details of this case.

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Court upholds decision to deny same-sex survivor's pension 14 July 2016

The Human Rights court has upheld the ruling against a retired worker in his bid to see his husband receive the same pay out from his pension scheme in the event of his death as a spouse of the opposite sex would be entitled to. Aldeguer Tom ás v Spain (ECHR) The European Court of Human Rights (ECHR) has backed the Spanish government against a man who was denied a survivor's pension on the death of his same-sex partner. The death occurred in 2002, three years before same-sex marriage was introduced in Spain. The ECHR reached a similar conclusion from the UK Court of Appeal in Innospec v Walker case – that the change in the consensus about sexual orientation did not require the retrospective rewriting of rules to put right past unequal treatment. Aldeguer Tomás argued that his circumstances were analagous to the surviving partner of a heterosexual cohabiting couple prevented from marrying before Spain changed the law to permit divorce in 1981. The ECHR rejected this, ruling that Tomás' situation was different in nature and context. It said changes to help heterosexual couples had been introduced against a background of pension rights being built up unequally between the sexes, because women were underrepresented in the work force.

With thanks to Pinsent Masons for providing this summary.

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Carrying over Paid Annual Leave when Sick 15 July 2016

Another case confirms that if sickness prevents a worker from taking annual leave, it can be carried forward.

If sickness prevents a worker from taking annual leave, can the leave be carried forward?

Yes, reaffirmed the European Court of Justice in Sobczyszyn v Skola Podstawowa w Rzeplinie .


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