2015 was a busy year in employment law. Shared parental leave was introduced in the spring, enabling eligible parents or adopters to share up to 50 week’s leave and 37 weeks’ statutory pay. The saga of calculating holiday pay rumbled on through the judicial system and we were there at the Employment Appeal Tribunal (EAT) this month at the Lock v British Gas hearing, tweeting live with all the developments. The Government’s proposal to offer shared parental leave to grandparents, the introduction of the Modern Slavery Act and controversy around the Referendum all hit the headlines in 2015.
So, what can we look forward to in 2016?
Gender pay reporting
After consultation on gender pay reporting closed in September, the Government is currently digesting the feedback received on what gender pay information should be published and how. There was great debate about whether bonus information should be included and whether the data should be broken down to show full time/part time employees and grade/job type. Whatever the detail, the Government has confirmed that it intends to publish draft regulations by mid-2016 which will require all public and private sector employers to publish information on average female and male earnings.
Trade Union Bill
The Trade Union Bill had its first reading in the House of Lords in November so, following a second reading and any further amendments, it is anticipated that it will receive royal assent and become law in early 2016. One of the key changes relates to strike ballots. At present, a simple majority of those members voting in a ballot is all that is required for a strike to be sanctioned. New measures proposed include the requirement for a minimum turnout of 50% of those entitled to vote before a ballot will be lawful; in the case of industrial action affecting essential public services such as health, fire and education, the support of at least 40% of those eligible to vote (as opposed to those actually voting) will be required before industrial action can be lawfully called.
National Living Wage
The national living wage will replace the national minimum wage in April 2016 with a package of measures designed to improve employer compliance to follow sometime in 2016. The penalty for employers failing to pay the national living wage will become 200% of the pay arrears and greater budget will be made available for enforcement.
In April 2016, the minimum £35,000 salary requirement will become law for Tier 2 Skilled Migrant Workers and, following its third reading in the House of Commons in December, the Immigration Bill is expected to be debated in the House of Lords early in 2016. If the proposed provisions become law, illegal working will become a criminal offence with employers who know or have reasonable cause to believe that one of their employees is an illegal worker, liable for up to five years’ imprisonment.
Zero Hours Contracts
The Draft Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 were published in October and will shortly come into effect to back-up the provisions added to the Employment Rights Act 1996 earlier in 2015, rendering unenforceable any clause seeking to prohibit a zero hours worker from working for anyone else. Employees and workers respectively will have the right not to be unfairly dismissed or subjected to a detriment because they failed to comply with an exclusivity clause.
We’ve seen a number of key cases decided in 2015 on topics such as whether time spent travelling to and from work counts as working time, annual leave and sickness, holiday pay and overtime, to name but a few. A number of key cases are also due to be decided in 2016.
Redundancy – collective consultation
In the ‘Woolworths’ case, dealing with an employer’s obligation to collectively consult, the Court of Justice of the European Union (CJEU) confirmed the opinion of the Advocate General and stated that “where an undertaking comprises several entities, it is the entity to which the workers made redundant are assigned to carry out their duties that constitutes the ‘establishment’”. The case will now return to the Court of Appeal (CA) in 2016 for a decision on whether each branch of Woolworths and Ethel Austin was factually a separate establishment. It seems likely that the CA will confirm that each store was an establishment for the purposes of the collective consultation obligations being triggered.
Following the CA’s rejection in the summer of Unison’s appeals regarding tribunal fees, we expect the Supreme Court will have the chance to consider this in 2016. Unison showed a clear downturn in the number of claims brought but the CA’s dismissal of the appeal was based in part on a lack of evidence as to the actual affordability of the fees for typical claimants. Meanwhile the Government is taking feedback from interested parties on the fee system, including Employment Tribunal Judges who have suggested that there should be a three track system, as well as a review of the level of fees and the introduction of a requirement for respondent employers to pay response and hearing fees.
In September, the CA heard the Griffiths v Secretary of State for Work and Pensions disability case with the decision reserved. Judgment has now been given with the CA upholding the decision of the Tribunal. The employee argued that her periods of disability related absence should be disregarded in relation to the triggering of warnings under the Department of Work and Pensions (DWP) absence procedure. The CA held that there was no failure to make reasonable adjustments by DWP when it declined to disregard these periods of absence and it continued to follow the steps set out in its absence policy.
The case of Chesterton Global Ltd and anor v Nurmohamed was the first appellate decision addressing the ‘public interest’ test. Mr Nurmohamed was dismissed following allegations that his employer was deliberately overstating actual costs and liabilities which adversely affected the bonus calculations of 100 senior managers. The EAT found that the matter complained about affected a sufficiently large group to provide a public interest. A disclosure can be made in the ‘reasonable belief it is in the public interest’ even where it relates to a contractual dispute affecting a group of staff and not the wider public. This decision is being appealed and is likely to be heard in late 2016.