We've set out the agenda for 2019 as it currently stands.
But, clearly, with a key Brexit vote scheduled for next week, and some politicians angling for a general election, this could change.
We've included below some changes that won't take effect until April 2020, as you may need to start planning in advance of that.
Workbox users can find more information on all of these developments at our `What's New?' page.
Otherwise, if you need more information, please get in touch.
EU workers and immigration
Briefly, the present intention is that:
EU nationals arriving in the UK up to 31 December 2020 can apply for settled status once they have lived in the UK for 5 years.
From 2021, UK immigration rules will apply to EU and non-EU migrants alike. In the event of a no-deal Brexit, the rights of EEA citizens and their families
living in the UK by 29 March 2019 will be protected. The `shortage occupation list' is being reviewed, with a report expected in
Discrimination, harassment and equal pay
Gender pay gap reporting
Many organisations will be due to publish their second gender pay gap report this year. Media interest is likely to focus on whether progress has been made in closing the gap and the steps taken towards this.
Ethnicity pay The government is consulting on introducing mandatory ethnicity pay gap reporting.
gap reporting Consultation closes 11 January 2019.
There will be a new statutory code of practice on sexual harassment at work. The government will also consult on:
Non-disclosure agreements Third-party harassment at work (eg. by clients or customers) A new legal duty on employers to prevent sexual harassment at work.
It will also consider additional protections for vulnerable claimants at tribunals.
Tribunal time limits
The government intends to `explore the evidence' for extending time limits for tribunal claims for discrimination and harassment.
Volunteers and interns
The government will consult on whether additional protections are needed for these groups in relation to all forms of discrimination and harassment.
Disability and mental health
In November 2018, the government published `Voluntary Reporting on Disability, Mental Health and Wellbeing', a framework to support employers to record and report voluntarily on disability, mental health and wellbeing in the workplace.
It is aimed at employers with 250+ employees, but can be used by smaller employers if they wish.
Equal pay in the private sector
A substantial number of equal pay claims have been raised against Asda, Sainsbury's, Tesco and Morrisons. Store workers (mainly female) claim that they should have been paid the same higher rate as warehouse workers (mainly male). We are awaiting decisions from the Court of Appeal.
Discrimination cases and appeals in 2019
Is veganism a protected philosophical belief? A tribunal decision that a belief in Scottish independence was a protected
philosophical belief is to be reconsidered. The Court of Appeal will consider the discrimination claim of a police constable
who was perceived to be disabled due to hearing loss. Was there religious discrimination when a non-executive director was
removed after giving media interviews expressing his opposition to adoption by same-sex couples? Was it discriminatory not to pay a male employee enhanced shared parental pay, where women received enhanced maternity pay?
Written statement of particulars
At present, you must provide employees (who will be employed for at least one month) with a written statement of certain terms of their employment. You must provide this no later than two months after the employment begins.
From 6 April 2020:
All workers will be entitled to a statement, rather than just `employees'. The obligation will apply regardless of the length of the engagement. Most information will need to be issued no later than the start of engagement. Statements will need to include additional information, such as the duration
and conditions of any probationary period, and details of other paid leave. You won't need to amend statements for employees engaged pre-6 April 2020 to include this additional information.
Continuity of service
Permitted gap increased to 4 weeks
Currently a gap of one week in employment can break continuous service. This is to be increased to four weeks (no timescale for this change as yet). This will help those who work intermittently for the same employer but who find it difficult to gain employment rights that require a certain period of continuous service.
Increase in rates
Annual increases in the National Minimum Wage and statutory rates (such as statutory maternity and sick pay) will take effect from April 2019.
The government is consulting on:
Salaried hours work eg payment cycles, the calculation year, and rules on overtime; and
Salary sacrifice schemes.
The consultation closes on 1 March 2019.
Case: sleep-in shifts and NMW
An appeal has been submitted to the Supreme Court (in the Mencap case) regarding whether workers are entitled to the National Minimum Wage throughout sleep-in shifts.
As regards pay for work on or after 6 April 2019:
You will need to provide all workers (not just employees) with an itemised pay statement.
If a worker's pay varies by reference to time worked, their payslip must show the total number of hours worked in respect of the variable amount of pay either as (i) a single aggregate figure, or (ii) separate figures for different types of work or different rates of pay. Here is the government guidance.
Tips The government intends to legislate to ban employers from making deductions from staff tips.
Holiday pay reference period increase from 12 to 52 weeks
From 6 April 2020, the holiday pay reference period (for determining an average week's pay) will increase from 12 to 52 weeks (or total weeks' worked if less than 52). This will apply to workers with no normal working hours, or those with normal working hours but whose pay varies with the amount of work done, or time work is done.
The new legislation does not cover the calculation of holiday pay for workers with `normal working hours' whose pay does not vary as above. For these workers, in line with recent `holiday pay cases', you sometimes need to include eg. commission and overtime when calculating holiday pay. The case law so far has said that this should be based on average pay over a `representative' period, decided on a case by case basis. In practice, even although the new legislation does not apply to these workers, it might result in tribunals being more inclined to view 52 weeks as being `representative'.
Holiday guidance and calculator
There will be new government guidance on holiday pay, with an improved holiday entitlement calculator and possibly a new holiday pay calculator.
The government will launch an awareness campaign aimed at ensuring individuals and employers understand paid holiday entitlement.
State enforcement of holiday pay
The government plans to introduce state enforcement of vulnerable workers' holiday pay rights. It is not clear who `vulnerable workers' are. They will be able to complain to the enforcement body, which can then pursue arrears on their behalf. The body will also have power to issue financial penalties.
Holiday pay cases
Could a zero-hours, term-time employee's holiday pay be capped at 12.07% of annual earnings?
There may be more cases regarding the inclusion of overtime and other sums in holiday pay.
There is to be a new single labour market enforcement agency (no timescales as yet) presumably to deal with eg. national minimum wage, holiday pay and agency workers' rights.
Consultation on statutory sick pay
The government will consult in 2019 on reforms to statutory sick pay. This may include changes to the enforcement mechanism.
The government indicated previously that it would extend shared parental leave and pay to working grandparents. It is not clear whether this will proceed.
Parental bereavement leave
Expected to take effect from April 2020: employed parents will have a right to two weeks' leave if they lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy. Some parents will also be able to claim statutory parental bereavement pay for this period.
Parents of a child that is stillborn after 24 weeks, or dies shortly after birth, already have statutory rights to maternity and paternity leave these will not change.
Publishing familyfriendly policies
The government intends to consult on whether to compel employers with 250+ employees to publish details of their `parental leave and pay' policies.
GDPR where have you reached?
Data protection and privacy will continue to be high profile in 2019. Organisations are at different stages in their `GDPR journey' however, the first anniversary of GDPR (25 May 2019) might be a good time to review whether new policies and procedures are working i.e. are they being implemented in practice?
The government intends to introduce legislation to streamline the tests for employment status so they are the same for employment and tax purposes, and to avoid employers misclassifying employees or workers as self-employed.
Guidance and The government plans to improve the guidance and online tools available to help
people understand their employment status.
Expect more cases in 2019 on employment status, possibly including an Uber appeal to the Supreme Court.
Atypical working and zero-hours contracts
Right to request fixed
The government is proposing that workers without a fixed working pattern will have a right to request this after 26 weeks' service. This could, for example, be a request for a
fixed number of hours or fixed working days.
It is likely that the process will be similar to that for flexible working requests, in that you will have to follow a process to respond to a request, but there will be certain permitted grounds for refusal.
Premium pay for nonguaranteed hours
The government does not intend to introduce a premium to the National Living Wage for working non-guaranteed hours (as suggested in the Taylor Review).
Flexible working review
The flexible working rules are due to be reviewed in 2019.
The government is considering requiring all jobs to be advertised as flexible from day 1, unless there are good business reasons otherwise.
The `Swedish derogation', which allows employers to pay agency workers less than their own workers in certain circumstances, will be abolished from 6 April 2020.
New rules will oblige employment businesses to provide agency workers with a Key Facts Page covering, for example, their contract type, minimum rate of pay, how they will be paid, and any deductions.
The remit of the Employment Agency Standards Inspectorate will be expanded to allow it to investigate complaints involving an umbrella company, and take enforcement action. This will focus on situations where agency workers have not received adequate pay.
Agency workers are entitled to the `same basic working and employment conditions' as permanent employees after 12 weeks. The Court of Appeal will consider whether terms should be compared term by term, rather than as a package i.e. can a higher rate of pay for agency workers justify less favourable paid holiday or rest breaks?
From 6 April 2020, employer national insurance contributions will be due on the balance of termination payments above the 30,000 threshold. There will be no change as regards employee national insurance.
Public sector The Scottish Government consulted in 2017 on severance arrangements across the
devolved public sector. In England, there was to be a new cap of 95,000 on most exit payments made to public sector workers, and provision for repayment of some exit payments for those re-employed in the public sector within 12 months.
There is no information on whether these changes will proceed.
IR35 in the
From 6 April 2020, the public sector IR35 reforms will be extended to large and
private sector medium-sized businesses in the private sector.
Disclosure of criminal convictions - Scotland
Reform of disclosure regime
The Scottish government consulted on proposed reforms to the regime for disclosure of criminal convictions, including the Protecting Vulnerable Groups (PVG) Scheme. The consultation report was published in October 2018, and we are awaiting the Scottish Government's response.
Scottish Government Fair Work First
Fair Work First
The Scottish Government intends to extend the range of Scottish Government and public sector contracts, and funding streams and business support grants, to which fair work criteria (such as action on gender pay and payment of the `Real Living Wage') apply.
Trade unions, and information & consultation
Information and consultation lower threshold
If you have at least 50 employees, you must make arrangements for information and consultation with employees if 10% submit a valid request. That is being reduced to 2% from 6 April 2020. There will still be a 15-employee minimum.
Deducting union subscriptions public sector
Regulations restricting deduction of trade union subscriptions from wages (check-off) in the public sector were originally expected to take effect in 2018. There is no information on current timescales for this.
The Court of Appeal will consider whether protection from being refused employment due to trade union membership extends to trade union activities that are incidental to membership.
Employment tribunals, tribunal fees, penalties
There has been a significant increase in employment tribunal claims since fees were declared unlawful in July 2017. The government has previously indicated that it intends to reintroduce fees in some format, but no detail or timescale is available.
Tribunal penalties and `naming and shaming'
Employment tribunals can impose a penalty on employers for `aggravating conduct' this is to be increased from 5,000 to 20,000 from 6 April 2019.
Employers will now be `named and shamed' for failing to pay tribunal awards.
The government is planning a new obligation on tribunals to consider aggravated breach penalties and costs orders where employers have lost a previous case on broadly comparable facts.
ACAS early conciliation
This system is due to be reviewed.
Power for the administration and management of Scottish employment tribunal is expected to be devolved to the Scottish Parliament from April 2020.
In England and Wales, plans for reform include digitising the claims process, and delegating certain tasks from judges to caseworkers. Tribunals are also piloting an online case service, which will include video hearings. The Law Commission is also consulting on issues such as the three-month time limit for claims, and increasing the limit of 25,000 for contract claims.
UK Corporate Governance Code
A new version of the Code provides for enhanced employee engagement (applies to financial years beginning on or after 1 January 2019).
Company reporting pay ratios and engagement
New reporting requirements come into effect for accounting periods from 1 January 2019 including:
Quoted companies with 250+ UK employees must publish the ratio of CEO to employee pay.
Companies with 250+ UK employees must prepare an annual statement summarising engagement with employees.
The senior managers and certification regime will be extended to all firms authorised
under the Financial Services and Markets Act 2000 from 9 December 2019.
Suspension: was there a breach of trust and confidence when a school teacher was suspended following an allegation of using unreasonable force against children?
Restrictive covenants: was a covenant too wide and therefore invalid because it stopped an employee being `interested in' any competing business and theoretically this could include holding one share in a publicly quoted company?
Legal advice privilege: should an email from a lawyer have been excluded from legal advice privilege due to `iniquity' because it gave advice that a genuine redundancy exercise could be used to `cloak' an employee's dismissal to avoid his discrimination complaints?
Whistleblowing: was an employee automatically unfairly dismissed for whistleblowing where the dismissing manager was unaware of protected disclosures made to her line manager?
Rest periods: must compensatory rest for a 20-minute rest break be taken in one uninterrupted period, or can a series of shorter breaks be aggregated?
If you would like to discuss any of the above, please contact us:
Tony Hadden HEAD OF EMPLOYMENT & PARTNER +44 (0)131 656 0290 email@example.com
Joan Cradden PARTNER +44 (0)131 656 0130 firstname.lastname@example.org
Lynne Marr PARTNER +44 (0)131 656 0241 email@example.com
Fiona Herrell MANAGING ASSOCIATE +44 (0) 1224 392 526 firstname.lastname@example.org