As expected Brexit took place on 31 January and we are now in a transition period lasting until 31 December 2020. During the transition period the UK will continue to be bound by decisions from the European Court of Justice.
January also saw a Government review of the implementation of the private sector extension of the off-payroll working rules. The review closed on 26 February and the Treasury published a policy paper containing measures to address concerns on 27 February. The April implementation date for the legislation remained.
In response to the novel coronavirus March saw changes to SSP legislation meaning employees could claim from the first (rather than the fourth) day of absence.
FROM APRIL 2020
Considerable amounts of new legislation and guidance began to be introduced in April as a result of the COVID-19 pandemic. This timeline does not include COVID-19 related changes - more information on that can be found on our Employment (COVID-19) pages. Away from the pandemic a significant amount of new legislation was 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 increased from £8.21 per hour to £8.72 per hour (for those aged 25 and over)
NMW 21 to 24 year old rate increased from £7.70 per hour to £8.20 per hour
NMW 18 to 20 year old rate increased from £6.15 per hour to £6.45 per hour
NMW 16 to 17 year old rate increased 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 increased 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 increased from the current £148.68 per week to £151.20. Statutory sick payincreased 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 took effect on 6 April 2020. The limit on the compensatory award for unfair dismissal rose from £86,444 to £88,519.
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) increased from £525 to £538 meaning the maximum basic award increased to £16,140.
Guidelines for Injury to Feelings Awards
The Court of Appeal previously set out guidance for quantifying awards for injury to feelings in discrimination cases, known as the Vento bands. The annual update, for all cases presented on or after 6 April 2020, is as follows:-
Lower band (less serious cases) £900 - £9,000
Middle band £9,000 - £27,000
Upper band (most serious cases) £27,000 - £45,000
Awards over £45,000 will only be made in exceptional cases.
Gender Pay Gap Reporting
The coronavirus pandemic resulted in gender pay gap reporting being suspended for 2020 but in the end 50% of businesses did still report. However, the minimum improvement in the pay gap shown in 2019 (a 0.1% drop) took a backward step with figures showing the gap increased by 1% from 11.9 to 12.8% based on those who did report. It is to be hoped that the 2021 figures will show some meaningful improvement but some commentators are suggesting that the pandemic will impact more on the working lives of women than men.
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. The Parental Bereavement Leave Regulations 2020 and The Statutory Parental Bereavement Pay (General) Regulations 2020 brought this right into force on 6 April 2020.
Taxation of Termination Payments
The National Insurance Contributions (Termination Awards and Sporting Testimonials) Act 2019 requires 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.
LATER IN 2020 AND BEYOND
Changes to the off-payroll working rules were intended to take effect in April 2020, however the Government deferred the changes in response to the impact of coronavirus on businesses and individuals. The changes are now due to take effect from 6 April 2021. The legislation making the changes is included in the draft Finance Bill 2020. More information can be found here.
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…..?
Ethnicity Pay Gap Reporting
After numerous studies, surveys and reports highlighting pay inequality based on ethnicity a consultation on the introduction of mandatory reporting took place in late 2018, closing in January 2019. All has gone quiet since then, however a petition published in March 2020 calling for introduction of mandatory reporting had by June 2020 reached the target of 100,000 signatures triggering consideration for parliamentary debate on the topic. Watch this space.
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 however they appeared to fade to nothing. That was until June 2020 when a report appeared in the Times newspaper suggesting ministers intend to re-instate fees after the paper had sight of correspondence between Whitehall officials and the head of the English Law Commission that asked the think tank to “provide recommendations for creating a coherent system for charging and updating fees in the future".
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.
UPDATE - The Supreme Court unanimously overturned the Court of Appeal judgement, finding Morrisons were not vicariously liable for the actions of their employee. The disclosure of the data was not so closely related to his role that it could be properly regarded as done while acting in the ordinary course of his employment. The fact that Mr Skelton was pursuing a personal vendetta and not furthering his employer's business was also highly material. Our full report on this case can be found here.
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 (although the hearing dates may be impacted by the pandemic), most notably:-
Casamitjana Costa v League Against Cruel Sports - was heard in the Employment Tribunal on 2 and 3 January 2020. The 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 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 of 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.
UPDATE - Permission for an appeal to the Supreme Court to proceed was denied, which means the Court of Appeal judgement stands. Employers will not be found to have discriminated if they enhance maternity pay but do not enhance shared parental pay in an equivalent manner.
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.
UPDATE - no appeal was made in this case so although the judgement that workers are protected under TUPE stands as it was an employment tribunal no precedent is set and no other court of tribunal is bound by it. However, it is likely that the same argument will be made in another case at some point in the future.
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.