As a result of Brexit, legislative updates and various high-profile Judgments, a number of interesting developments are expected in the field of employment law during the months ahead.
Lisa Moore, Associate in the Employment team at The Wilkes Partnership, considers some of the key changes for employers to be mindful of in 2017.
Gender Pay Gap Reporting Requirements
All private and voluntary sector employers with more than 250 employees as of 5 April 2017 should be preparing to comply with the Government’s new gender pay gap reporting requirements. Employers will need to collect data on the pay differences between male and female employees. This information will then need to be published by employers by 4 April 2018 in a prominent place on their website and on a Government website to be unveiled later this year. It is anticipated that non statutory guidance will be published on these requirements in due course by both the Government and Acas.
Self-Employed Workers and the “Gig Economy”
The use of apparently self-employed contractors by companies like Uber and Deliveroo as part of the so called “gig economy” has been on the rise in recent years. Much publicity was generated last year when an employment tribunal found Uber drivers to be workers in the case of, Aslam and others v Uber BV and others. Uber has, however, lodged a notice of appeal in response to this decision which has been accepted and is likely to be heard in the summer so there will be further updates to follow in this case.
In February 2017, the Court of Appeal handed down a decision in the case of, Pimlico Plumbers Ltd v Smith which gave further consideration as to the distinction between self-employed contractors and employees. It was held that whilst Mr Smith was not an employee, he was a worker despite appearing from documentation to be in business on his own account, and other relevant factors such as having supplied his own materials, tools and insurance. This finding would entitle Mr Smith to pursue a number of claims against the company, including claims for holiday pay and unlawful deduction of wages. Although it is not yet clear whether they have been granted permission to do so, Pimlico Plumbers had previously indicated that it intended appealing to the Supreme Court.
Separately, the results of three inquiries are expected to be published during 2017 on this topic. Firstly, the Business, Energy and Industrial Strategy Committee will seek to address the status and rights of agency workers, the self-employed as well as individuals working in the gig economy. Secondly, the Work and Pensions Committee will consider whether the UK welfare system supports those working in the gig economy sufficiently. Finally, the Royal Society of Arts is conducting an independent review of employment practices in the modern economy.
The Government has now triggered Article 50 and the process of the United Kingdom leaving the EU has now begun.
As much of the UK’s employment law is influenced by the EU, Brexit will have significant long term implications for the employment law landscape. For instance, changes could be made to holiday entitlement, the Agency Workers Regulations as well as the TUPE regulations. Further clarity is likely to be provided in this respect during the course of the year.
Employment Tribunal Fees
By some estimates, the 2013 increase in employment tribunal fees led to a 70% reduction in the number of employment tribunal claims. Following the increase in tribunal fees, Unison launched a bid to overturn the fee hike arguing that it restricted the access to justice of potential claimants. Unison’s challenge has made its way to the Supreme Court and is due to be heard in the next couple of weeks. In any event, the general consensus amongst employment law practitioners is that tribunal fees are here to stay.
It is anticipated that a hearing of the case of, The Sash Window Workshop Ltd and another v King will take place at the European Courts of Justice (“ECJ”) later this year. In this case, the ECJ will consider whether workers should be entitled to carry their holiday over from one year to the next in circumstances where they are unable to use their all of their allowance due to factors outside of their control.
A decision from the Employment Appeal Tribunal is also awaited in the case of, Fulton and another v Bear Scotland to establish whether statutory holiday pay should be included in overtime pay.
Lisa Moore comments: “The above serves as a brief summary of some of the main developments which are expected in 2017. It looks set to be a busy year with a number of other changes being introduced including an apprenticeship levy as of 6 April 2017 – this will require employers that have an annual payroll of more than £3 million to pay a 0.5% levy on their total pay bill. Furthermore, notable decision are also being awaited in cases relating to issues such as whistleblowing, disability discrimination and subject access requests so please do look out for further updates.”
To discuss anything arising from this update, please contact Lisa Moore or any member of the Employment Team on 0121 233 4333.