2018 looks set to be a busy year in employment law, with some fairly significant changes expected. Key developments include the introduction of gender pay gap reporting, and changes to data protection requirements and the taxation of payments in lieu of notice. We highlight the key employment law changes and cases to watch out for in the coming year.
Employment law changes
Gender pay gap reports
The first gender pay gap reports have to be published by the private sector (where applicable) on 4 April 2018. The reports are bound to be hotly reported in the media, as those already released have been, and it will be interesting to see how much the voluntary narrative provided by employers can mitigate the reputational effects of any significant pay gaps. It is important to ensure the accuracy of the gender pay gap figures prior to publication. Several companies have already been caught out by a Financial Times investigation into the accuracy of their figures.
On 1 April statutory maternity, paternity, adoption and shared parental pay will increase. Statutory sick pay will go up on 6 April. The national minimum wage will rise on 1 April.
Payments in lieu of notice
From 6 April, income tax and both employer and employee National Insurance contributions will be payable on all payments in lieu of notice.
EU General Data Protection Regulation (GDPR)
The GDPR will come into force on 25 May. This will require employers to comply with new legislation in respect of the processing of personal data. Careful consideration will need to be given as to how employee data is processed and how information is provided to employees about the use of their data. In particular, the GDPR will require a move away from relying on employment contracts towards comprehensive and clearly drafted privacy notices. Liability for a breach will be 4% of annual global turnover or €20 million, whichever is higher. We can also expect the Data Protection Act to be replaced with a new Data Protection Bill.
Corporate governance reforms
These are expected to come into effect by June. The proposals for reform include executive pay, strengthening the employee voice, and corporate governance in large privately-held businesses.
- The Sash Window Workshop Ltd and another v King – this case is likely to have implications for the self-employed (or gig economy). The European Court of Justice (ECJ) recently ruled that a worker must be able to carry over unused holiday where they have been unable to exercise the right to take paid leave due to the fact it would not be paid. The Court of Appeal will now consider its decision in this case following the outcome of the referral to the ECJ
- Ali v Capita Customer Management Ltd, and Hextall v Chief Constable of Leicestershire Police – these cases relate to shared parental leave and whether it is sex discrimination to deny male employees the chance to receive enhanced pay while taking shared parental leave. In both cases, enhanced pay would have been paid to a woman taking maternity leave. This is an important set of cases to keep an eye on – depending on the EAT's decision, it may result in employers having to enhance shared parental pay where they also offer enhanced maternity pay.
- Peninsula Business Service Ltd v Baker – this case is due to be heard by the Court of Appeal on 27 March and will hopefully answer the question of whether a claimant has to prove that they are disabled in order to claim disability harassment.
- Bellman v Northampton Recruitment Ltd – in April the Court of Appeal will consider the High Court's ruling that a company was not vicariously liable for a serious assault by its managing director at a drinking session after the company's Christmas party. There is potential for the High Court's decision to be overturned given the Supreme Court's ruling in Mohamud v WM Morrison Supermarkets Pl
- Porras Guisado v Bankia SA and others – the ECJ's decision is due, following the Advocate General's opinion that the Pregnant Workers Directive should protect workers against dismissal from the moment they become pregnant, even if they have not notified their employer.
- Lee v McArthur and Ashers Baking Company Ltd – the Supreme Court will hear this case in May and it is a case more commonly known as the 'gay cake case'. The Court will decide whether a bakery directly discriminated against a gay man by refusing to bake him a cake with the decoration 'Support Gay Marriage'. The outcome of this case will have important implications for all those in service based industries.
- Asda v Brierley and others – the Court of Appeal will hear this case on 23 October. The Court will decide whether the EAT was correct in upholding the ET's decision that female retail employees were entitled to compare themselves with male distribution depot employees in an equal pay claim.