Employment Law Update

This was a whistle stop tour of current issues.

Brexit – possible, but unlikely, extension of negotiation period beyond March 2019.
EU law will no longer apply and the UK's EU Withdrawal Bill will import into domestic law, anything existing in EU. Legislation such as Equality Act will continue. Case law of the Court of Justice (CJEU) will be preserved as it exists on the day the UK leaves the EU. It is not clear on what happens to CJEU rulings post Brexit.

In some areas UK were ahead of the curve in employment conditions. Areas of UK employment law that are derived from the EU include many of the employment protections like:-
– Maternity and paternity leave
– Business transfer /TUPE rules
– Holiday pay
– Working time and rest breaks
– Protection for agency workers
– Part time and full time worker protection
– Collective consultation rules

UK will want to continue trading so will retain much of what already exists.

What will change?
Some areas are ripe for change
Possible cap on discrimination payments
More freedom for positive discrimination
Transfer of businesses regs have been gold plated but could ease terms and conditions post transfer.
Holiday pay could revert to basic pay and could cease carry over of holidays.

Key issue for employers is freedom of movement.
Keep up to speed with your right to work registrations.
Impact to business of fewer EU workers.

Modern working practices – reform?

Taylor Report reviewed modern working practices. Employment practices need to change to keep up with modern business models- extra protection recommended.
Employee status is “full fat” status but
Non standard working practices like Uber and Ikea categorise workers as self employed with less entitlement.

Lack of clarity is causing problems. Need cleared rules and closer look at zero hours contracts. Taylor said keep zero hours contract but pay a higher minimum wage for those on these contracts.

State enforcement of holiday and sick pay could be introduced and there could be simplification of tribunal awards because 46% of tribunal awards in Scotland fail to get paid!

Government response to Taylor Report is not yet known. Consultation closes in June 2018. Under consideration is
Employment Status
Increasing transparency in the labour market
Agency and atypical workers
Enforcement of employment rights
Removal of one week break to prevent period of continues employment.
Suggested that Holiday pay based on 52 weeks normal pay rather than 12 weeks at moment.

Taxation of termination payments
Current position
– salary and contractual payments, including payments in lieu of notice are fully taxable
– Non contractual payments including non contractual / statutory redundancy payments are tax free up to £30,000
From 6 April 2018
– all payments in lieu of notice subject to tax whether contractual or not
– HM Treasury May vary £30,000 threshold by regulations

Recent case law developments

Certain holiday pay entitlements have been undermined by recent case studies.Employers can still say you must use them or lose them. But if the employer denies employee holidays because they are too busy to allow them time off this can lead to claims back in time.

Uber case is headline grabbing but the judgement is not that ground breaking. It merely applies the law that stood. Uber went to far. Not truly self employed worker who could come and go as they please because Uber gave their drivers branding, restraints and policies. There has been an appeal made to the Court of Appeal.

Unfair Dismissal and long term sickness
Case of O'Brien v Bolton St Catherine's Academy got to dismissal stage after due process during lengthy absence. Latterly O'Brien had a fit to return to work form, was not taken back on but tribunal agreed that there had been wrongful dismissal. No justification why decision was taken therefore unfair. EAT overturned it because medical evidence was 'half baked'. Court of Justice reinstated the decision of the Employment Tribunal. No evidence and should have waited longer. So need to be much more careful in spelling out why decisions are made.

Data Protection
Case under the 1998 Data Protection Act
Full details of 99,998 employees at Morrison's were revealed on a website. This included NI numbers, bank account, salaries etc. Site was taken down and the police informed. A senior IT person, Mr Skelton, at Morrison's was convicted for 8 years imprisonment.
5518 employees brought claims for breach of statutory duties. Morrison's were liable for the actions of the employee Mr Skelton. Employers are liable vicariously.

Other matters to note

The latest Employment Tribunal statistics reveal a 90% increase in the number of single claims since the abolition of Employment Tribunal fees in August 2017.

The likelihood of an employer receiving a Tribunal claim from a disgruntled employee is therefore significantly higher than in the previous four years.