We will, by virtue of Brexit, be saying good bye to the European Court of Justice and the influence of EU law on UK employment law but I cannot recall any year where there has been more employment law related consultations than 2019. That means we can expect 2020 to be one of the busiest years yet in terms of new employment rights. The Good Work Plan continues to progress with new legislation taking effect in April. In addition, non disclosure agreements, equality of pay (in particular gender and racial inequality), employment status and sexual harassment are also likely to continue to make the headlines. TUPE may also be back in the news following an Employment Tribunal decision at the end of 2019 which found that the TUPE Regulations should apply to workers as well as employees. But what else is in store?
January - March
It is intended that the European Union (Withdrawal) Act will be implemented on 31 January 2020. Among other effects, the EUWA will repeal the European Communities Act 1972 ending the supremacy of EU law in the UK, albeit preserving EU law, as it stands at the moment of exit, into UK law.
The extension of the changes to the off payroll working (IR35) rules to the private sector may or may not be coming into force in April. Mention of the review of these new rules promised by Sajid Javid, during the election campaign, was conspicuously absent from the Queen's Speech on 19 December. If any action is to be taken it will need to be done early in the year given the planned implementation date of 6 April.
A host of new legislation is expected to come into effect on 6 April 2020:-
- The Employment Rights (Employment Particulars and Paid Annual Leave)(Amendment) Regulations 2018 provides for, amongst other things:-
(1) a written statement of terms and conditions to provided on or before day 1 of employment and additional information to be included in the statement; and
(2) the increase of the reference period for determining a week's pay for holiday pay purposes from 12 to 52 weeks.
- The Employment Rights (Miscellaneous Amendments) Regulations 2019:-
(1) extends the right to a written statement of terms and conditions from employees to workers; and
(2) reduces the threshold to request the set up of information and consultation arrangements from 10% to 2% of employees.
- The Agency Workers (Amendment) Regulations 2019 will remove the "Swedish derogation" which, in certain circumstances, currently allows agency workers to be employed on cheaper rates than permanent employees with agencies being obliged to inform workers of this by no later than 30 April 2020.
- The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019 require temporary work agencies to provide a Key Information Document to agency workers which includes details of rates of pay, who will pay them, how they will be paid and the type of contract they are being engaged on.
- The National Insurance Contributions (Termination Awards and Sporting Testimonials) Act 2019 will require all termination payments above the £30,000 threshold to be subject to employer national insurance contributions.
- Subject to any review (see above), the changes to the off payroll working (IR35) rules will be extended to medium and large sized companies in the private sector.
- The Parental Bereavement (Leave and Pay) Act 2018 is also expected to come into force providing for two weeks bereavement leave for bereaved parents of a child under the age of 18. This will be paid, subject to eligibility requirements.
In addition to this, in April, we will also have the annual changes to National Living Wage and National Minimum Wage rates, changes to Employment Tribunal award limits, changes to various statutory rates and the annual review of the "Vento" bands (relating to injury to feelings awards).
April will also see the third round of gender pay gap reporting. After being somewhat underwhelmed by improvements in 2019 (0.1% lower than 2018) it remains to be seen whether anything meaningful can be achieved in 2020.
Later in 2020 and beyond
The significant amount of consultation that went on in late 2018 and throughout 2019 means that there is scope for a great deal more new legislation to be introduced. We still await any movement on the possible introduction of ethnicity pay gap reporting but it is expected that this will come at some point, probably, 2021 at the earliest.
Consultations that have closed and, as at the end of 2019, the Government's response is awaited (albeit certain of these points were covered in the recent Queen's speech) include consultations on:-
- measures to address one sided flexibility
- employment status
- reform on parental leave and pay
- neonatal care leave and pay
- transparency of flexible working and family related leave and pay
- regulations to implement the cap on public sector exit payments
- Health is everyone's business: proposals for reducing ill health related job loss
The Gender Equality Roadmap published on 3 July 2019 includes proposals on:-
- reviewing equal pay legislation
- consultation on the effectiveness of workplace sexual harassment legislation
- new guidance from the Equality and Human Rights Commission
- reviewing and potentially consulting on changes to gender pay gap reporting
- review of shared parental leave and pay
- consultation on increasing transparency of organisations parental leave and pay policies
- improving the availability of flexible working in job adverts.
Some of these issues have been progressed (see the list of consultations above) while others have not, some were mentioned in the Conservative party manifesto or the Queen's speech, while others were not. The Roadmap also proposed a consultation on the introduction of a new right to carer's leave. This was subsequently referred to in the manifesto and again in the Queen's Speech in December where it was confirmed that it would be included in the Employment Bill which is to be introduced during the next Parliamentary session.
The Employment Bill's key features are:-
- creating a new single labour market enforcement body
- ensuring tips and service charges go to workers in full
- introducing the right to request more predictable contracts
- extending redundancy protections to prevent pregnancy and maternity discrimination
- introducing extended leave for neonatal care
- introducing an entitlement to one week's leave for unpaid carers
- making flexible working the default position unless employers have a good reason not to (subject to consultation)
Prior to the election, the UK Government committed to introducing new legislation restricting the use of confidentiality clauses in contracts and settlement agreements "when Parliamentary time allows" but it was not referred to in the Queen's Speech.
In addition, the Queen's speech indicated that legislation is to be introduced to reduce disruption caused by rail strikes. The UK Government's intention is to require a minimum level of service during strike action to ensure that the public are not disproportionately affected by rail strikes.
There were ripples in 2019 suggesting that tribunal fees may be re-introduced at some point in the future, but there has been nothing to suggest that this is imminent.
Cases to watch out for
If the impending changes to legislation are not enough then there are also a significant number of cases worth watching out for in 2020. Cases looking at vicarious liability for data breaches (Various claimants v Wm Morrisons Supermarket), comparators for equal pay (Asda Stores Ltd v Brierley & others), discrimination on the grounds of sexual orientation (Lee v Ashers Baking Co Ltd & Others), failure to enhance shared parental pay (Ali v Capita Customer Management and Chief Constable or Leicestershire v Hextall), payment for employees who have "sleep-in" duties (Royal Mencap Society v Tomlinson Blake; Shannon v Rampersand (t/a Clifton House Residential Home), and employment status (Uber BV and others v Aslam and others) are either awaiting a judgement or waiting to be heard by the Supreme Court in 2020. In addition, the high profile case of Varnish v British Cycling, concerning employment status, is awaiting a hearing date in the EAT. It is also anticipated that if (or more likely when) the TUPE related judgement in Dewhurst & Others v Revisecatch Ltd t/a Ecourier and City Sprint (UK) Ltd is appealed it could be one of the big employment law stories of 2020.