Brexit is expected to take place on 31 January, with the transition period lasting until 31 December 2020. The European Union (Withdrawal Agreement)(Bill) was re-introduced to Parliament on 19 December. This version differs from the version that had got to a second reading prior to the dissolution of Parliament in so much as it removes provisions intended to safeguard EU-derived workers' rights. The Government has said it intends to deal with protection and enhancement of workers' rights separately. The new Bill also gives the Government the power to issue regulations specifying that lower courts and tribunals will not be bound by ECJ cases or by existing domestic case law relating to EU derived rights.
A review of changes to off payroll working rules was launched on 7 January and is due to conclude by mid-February. The review is to determine if any further steps can be taken to ensure a smooth and successful implementation of the reforms which are due to come into force in April 2020. A separate review is to be launched to explore how the UK Government can better support the genuinely self employed, who are not in the scope of the new rules.
FROM APRIL 2020
A significant amount of new legislation is to be introduced in April 2020, much of it stemming from the Good Work Plan.
Good Work Plan
The Employment Rights (Employment Particulars and Paid Annual Leave)(Amendment) Regulations 2018 provides for a written statement of particulars to be given from day one of employment (rather than within the current two month period) and that certain additional information must also be included in the statement. It also increases the period for determining an average week's pay for the purposes of calculating annual leave from 12 to 52 weeks;
The Employment Rights (Miscellaneous Amendments) Regulations 2019 requires the written statement referred to above to be given to all workers (rather than just employees) and reduces the requirements for employee requests to set up information and consultation arrangements; and
The Agency Workers (Amendment) Regulations 2019 removes the "Swedish derogation" - a fairly controversial provision of the Agency Workers Regulations 2010 which, in certain circumstances, currently allows agency workers to be engaged on cheaper rates than permanent employees, with agencies being obliged to inform affected workers of this change 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.
Other changes from April 2020 include:
National Living Wage/National Minimum Wage
With effect from April 2020:-
NLW will increase from £8.21 per hour to £8.72 per hour (for those aged 25 and over)
NMW 21 to 24 year old rate will increase from £7.70 per hour to £8.20 per hour
NMW 18 to 20 year old rate will increase from £6.15 per hour to £6.45 per hour
NMW 16 to 17 year old rate will increase from £4.35 per hour to £4.55 per hour
NMW apprentice rate for those aged under 19 or in their first year of an apprenticeship will increase from £3.90 per hour to £4.15 per hour
As of April statutory maternity pay and allowance, and statutory paternity, adoption and shared parental pay is expected to increase from the current £148.68 per week to £151.20. Statutory sick pay is also expected to increase from £94.25 to £95.85 per week. The increase usually occurs on the first Sunday of April.
The annual Employment Tribunal award limit changes will take effect on 6 April 2020 but are yet to be announced. The limit on the compensatory award for unfair dismissal is currently £86,444.
The cap on the compensatory award is the lower of the maximum or 52 weeks' pay (based on the Claimant's gross salary prior to dismissal including employer pension contribution but excluding benefits in kind and discretionary bonus). As always there are a limited number of exceptions where the cap does not apply. These are dismissals for whistleblowing or for raising certain health and safety issues. In addition, there is no limit to the award that can be made where a dismissal is related to unlawful discrimination.
The limit on a week's pay (used for calculating statutory redundancy payments and the basic award for unfair dismissal) is currently £525. This will change in April 2020 albeit the rate it will change to has still to be announced.
Gender Pay Gap Reporting
4 April will see the third deadline for gender pay gap reports to be published by private and voluntary sector companies with 250 or more employees. The 2019 figures showed the median hourly pay gap reduced by 0.1% from 2018 - it is to be hoped that the 2020 figures will show a more meaningful improvement.
Parental Bereavement (Leave and Pay) Act 2018
The Parental Bereavement (Pay and Leave) Act 2018 received Royal Assent on 13 September 2018. It entitles employees who find themselves in the tragic situation of having lost a child under the age of 18 to have 2 weeks' bereavement leave and, for those with the necessary qualifying service, paid leave. Regulations are required to bring the schedule to the Act (which creates the statutory entitlements) into force and this is expected to happen in April 2020.
Taxation of Termination Payments
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. There are no plans to change the unlimited employee NIC exemption on non-contractual termination payments and, other than for PILONs, the £30,000 exemption for income tax on non-contractual termination payments also remains.
Reform of IR35 in the Private Sector
The reported success of the change to off-payroll working in the public sector (introduced in April 2017) resulted in plans to extend this to the private sector from 6 April 2020. The change means that the organisation, agency or other third party engaging an individual are responsible for operating the intermediaries legislation (IR35) - in other words assessing the employment status of the individual - rather than the individual being engaged doing this themselves. Small organisations are exempt. The legislation making the changes in included in the draft Finance Bill 2020. More information can be found here.
LATER IN 2020 AND BEYOND
The Employment Bill was mentioned in the Queen's Speech in December 2019 and is to be introduced during this Parliamentary session. They key features of the Bill 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)
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. Any strike which does not meet the minimum service requirement will be unlawful. Injunctions/interdicts or damages will be able to be sought against unions.
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".
The Gender Equality Roadmap published on 3 July 2019 included 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.
There was also a significant number of consultations on employment related matters during 2019. Responses are awaited from the Government on the following:-
- measures to address one sided flexibility
- employment status
- Proposals to support families, including
- reform on parental leave and pay
- neonatal care leave and pay (although this appears in the Employment Bill)
- 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
WHATEVER HAPPENED TO…..?
Repayment of Public Sector Exit Payments Regulations
Although a consultation was undertaken on draft regulations capping exit payments to public sector employees on termination of employment between April and July 2019, all is quiet on the legislation requiring repayment of public sector exit payments. If the draft Restriction of Public Sector Exit Payments Regulations 2019 come into force, the repayment regulations may well follow.
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.
Shared (Grand) Parental Leave
The Government announced plans to extend Shared Parental Leave (SPL) to include grandparents in late 2015. The Government’s original stated aim was to introduce this during 2018, although the consultation planned for early 2016 was delayed until after the Brexit referendum and, to date, has not taken place. Watch this space for further updates on this.
Ban on Corporate Directors
The ban on corporate directors expected to take effect in October 2016 was also delayed. No new implementation date has been announced.
KEY CASES FOR 2020
Where we have covered these cases in the past, more details on the facts and the judgements that have been appealed can be obtained by clicking on the case names below.
In 2020 we will see a number of interesting judgements from cases heard in 2019 including:-
Various claimants v Wm Morrisons Supermarket - this case was heard by the Supreme Court in November 2019. The appeal is against an original finding of the High Court (upheld in the Court of Appeal) that Morrisons was vicariously liable for an intentional data leak by one of their employees in circumstances where the employee was motivated by a desire to cause damage to the company.
Awan v ICTS UK Ltd - this case was due to be heard in the Court of Appeal in December 2019 and concerns an appeal from a decision of the EAT that an employee could rely on an implied term to prevent his employer dismissing him while he was in receipt of long term disability benefits. The crux of the case is whether the contractual terms entitling Mr Awan to long term disability benefit but also entitling the employer to dismiss in cases of long term absence were inherently contradictory.
There are also a number of high profile cases due to be heard in 2020, most notably:-
Casamitjana v League Against Cruel Sports - was heard in the Employment Tribunal on 2 and 3 January 2020. Although full written reasons are not yet available this case, which considered whether ethical veganism is capable of protection as a philosophical belief under the Equality Act 2010, came out in favour of the claimant. The issue was conceded by the employer but it is understood that the concession was not accepted by the Judge, who wanted to come to his own conclusion. His conclusion was that in Mr Casamitjana's case his beliefs were capable of protection under the Act. As this was an employment tribunal decision it does not set a precedent (and it follows on from a decision that vegetarianism is a lifestyle choice not weighty or serious enough to gain protection) but this is a developing area of employment law that employers need to be aware of.
Asda Stores Limited v Brierley - in Febuary 2019 the Court of Appeal upheld a decision of both the ET and EAT that a predominantly female group of supermarket retail employees can compare themselves with a mainly male group of distribution depot employees for the purposes of an equal pay claim of work of equal value. Permission to appeal to the Supreme Court has been granted and a hearing date is awaited.
Lee v Ashers Baking Co Ltd and others - following defeat in the Supreme Court, an application has been lodged with the European Court of Human Rights by Mr Lee. Admissibility is yet to be decided, but if the case proceeds the Court will consider whether the refusal to provide a cake with the slogan "Support Gay Marriage" was discrimination on the grounds of sexual orientation or religious belief or political opinion.
Ali v Capita Customer Management and Chief Constable or Leicestershire v Hextall concerns two cases looking at whether it is sex discrimination to enhance maternity pay but not enhance shared parental pay. The cases were heard together by the Court of Appeal where it was held that employers can enhance maternity pay while continuing to pay shared parental pay at the statutory rate without it being either directly or indirectly discriminatory or a breach of the equal pay sex equality clause. However, permission to appeal to the Supreme Court has been granted and a hearing date is awaited.
Royal Mencap Society v Tomlinson-Blake concerns the correct approach to determining whether employees who "sleep-in" in order to carry out duties (if required) engage in time work for the full duration of their night shift. The case is due to be heard by the Supreme Court on 12 and 13 February 2020.
Uber BV and others v Aslam and others - employment status will once again be the focus of attention when this case is heard by the Supreme Court on 22 and 23 July 2020. The appeal is against the decision of the Court of Appeal that Uber drivers are workers for the purposes of the Employment Rights Act 1998, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.
Varnish v British Cycling - this high profile discrimination claim brought by Olympic cyclist Jess Varnish is awaiting a date for a hearing in the EAT. The appeal is against a preliminary decision that Ms Varnish was neither an employee nor worker of British Cycling and UK Sport.
Dewhurst & Others v Revisecatch Ltd t/a Ecourier and City Sprint (UK) Ltd - in November 2019 an employment tribunal held that workers as well as employees are protected under the Transfer of Undertakings (Protection of Employment) Regulations 2006. An appeal to the EAT is expected to be made.
Employment Law Fact Card 2020/21
Our employment law fact card is full of useful information for employers. You can access the PDF version of the 2019/20 version at the link below. We will be issuing our 2020/21 version shortly (late March/early April), if you would like a free hard copy to be sent to you once it is available, please email email@example.com with your name and postal address.
Guide to Employment Law
For an overview of UK employment law see A Guide To Employment Law In Scotland, England & Wales.