Employment Law Update
Chris Cook gives a round-up of the key changes, updates and legislation you should be aware of.
So far this year, we have seen significant employment law changes and some are ongoing due to the uncertainty resulting from Brexit. Although there are no new regulations coming in this October, make sure you don't miss anything and are fully up to speed recent employment law updates as well as those just down the track.
General Data Protection Regulation (GDPR)
The GDPR replaces the Data Protection Act from 25 May 2018, introducing new obligations for organisations, more rights for citizens, and harsher penalties for non-compliance. On a wider scale, it harmonises data protection laws across the EU, and applies to anyone handling the personal data of EU individuals. Even with Brexit, this law will apply to all UK organisations.
Abolition of Employment Tribunal Fees
On 26th July, UNISON won a landmark appeal against the legality of the current system of employment tribunal fees. The Supreme Court ruled that ‘the Fees Order effectively prevents access to justice, and is therefore unlawful’. The Case Management Order of the President (No.2) published on 18 August 2017 ordered that:
- The stay on all claims or applications brought before the court in reliance upon the decision in Unison is lifted with immediate effect;
- The administrative arrangements for applications for reimbursement of fees will be announced shortly; and
- The administrative arrangements for applications for the reinstatement of claims rejected or dismissed for non-payment of fees will be announced shortly.
Voluntary overtime and holiday pay
Despite the uncertainty around overtime and holiday pay, in July this year, the EAT ruled that employees that regularly worked voluntary overtime for a sufficient period of time should have those payments included when the rate of their holiday pay is calculated. Mileage allowances are also to be included in holiday pay only to the extent that they were treated as taxable benefits.
Care sector – HMRC decision on Sleep-In pay
In an unprecedented move, HM Revenue & Customs waved its policy on enforcement and prosecution of social care employers that are in breach of the NMW as a consequence of the Mencap case. It acknowledged the cumulative financial liability, penalties, and arears of wages and recognised the impact an enforcement will have in the care sector. However employers found to have underpaid their staff after 26 July 2017 will face the usual HMRC enforcement.
Uplift of the Vento Bands
In July 2017, the presidents of the Employment Tribunals in both England & Wales and Scotland issued a joint judicial consultation that seeks views on the proposed changes to the Vento guidelines. The Presidential Guidance considered adjustment to the Vento figures for inflation, appropriate measure being RPI published by National Statistics Office. It also intends to bring clarification that the 10% uplift to general damages in civil claims for matters such as pain and suffering or mental distress (the Simmons v Castle uplift) should correspond to injury to feelings in the employment tribunal awards.
On 30 November 2016, the Independent Review of Employment Practices in the Modern Economy was launched, which aimed to consider the implications of new models of working on the rights and responsibilities of workers, as well as on employer freedoms and obligations.
The report was published on 11 July 2017 and makes several recommendations including:
- To rename “worker” status as “dependent contractor” status and to make the definition clearer.
- To give dependent contractors additional rights, such as the right to a section 1 statement of terms.
The report also makes recommendations relating to agency workers and zero-hours contract workers and their rights to holiday pay and statutory sick pay.
The recommendations will require consultations before any new law is drafted. It is believed that consultations will begin to be published in Autumn 2017.
Gig Economy – Employment Status
On 25 July 2017, an employment tribunal held that a cycle courier working for Addison Lee was a worker under the Working Time Regulations 1998 and Employment Rights Act 1996, not a genuinely self-employed independent contractor. This is yet another in a line of recent cases on employment status in the gig economy.
The Uber decision was the first in this string of cases and Uber has confirmed it intends to appeal their employment tribunal decision. The appeal is scheduled to be heard by the Employment Appeal Tribunal on 27 and 28 September 2017.