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Employment law in 2019: what can we expect?

Posted on 7th January 2019

Our politicians’ preoccupation with Brexit means that there is not a lot to say about what is happening in employment law in 2019 outside Brexit. Here is our overview of the year ahead and what will have to wait until 2020.

Brexit

Re-negotiation? No deal? General election? People’s vote? At the time of writing, we have yet to see what will happen. However, in the employment law arena, it is likely that 2019 will see minimal change. Indeed this is the key take away from the government’s technical notice published in September on workplace rights in the event of a no deal Brexit. This followed the government’s white paper on the UK’s future relationship with the EU which also proposed no regression in EU based employment laws. However, there will be changes to immigration rules because of the end of the free movement (subject to transitional arrangements). The government has introduced a scheme for EU workers already in the UK to apply for settled status so they can remain in the UK indefinitely, and there will be restrictions on the employment of EU workers which will inevitably affect recruitment and workforce planning.

Pay reporting

Pay ratio reporting: from 1st January 2019 UK listed companies with more than 250 employees must report on stakeholder and employee engagement and publish and justify the pay difference between their CEO and their average UK worker. We won’t see the first reports until 2020 however because the regulations first apply to the financial year starting on or after 1st January 2019 (with reports being published at the end of the FY). Businesses to whom this applies should start collecting data and compiling their evidence.

Ethnicity pay reporting: the government is currently consulting about mandatory ethnicity pay reporting, similar to gender pay reporting. This consultation comes to an end in January, however, lead times for implementation (still unclear what this will look like exactly) are likely to be quite chunky to allow employers to collect ethnicity data many currently do not have.

We will also have the chance to evaluate progress as the second gender pay gap reports are published in March/April. The House of Commons’ BEIS Committee has also published a report including recommendations such as extending the obligations to companies with 50 or more employees (currently it is 250 or more) so watch this space.

Pay

National living/minimum wage rates increase as is customary on 1st April (25 years and over from £7.83 to £8.21).
From April, statutory rates for SMP/SPP/Shared Parental Pay and Adoption Pay go up to £148.68 (from £145.18) and SSP increases to £94.25 (from £92.05)

From 6th April, employees AND workers must receive an itemised pay statement and it must set out their hours worked where pay varies. This can be an aggregate figure or a breakdown or different types of work/pay.

Auto-enrolment pension contributions also increase in April 2019 to a total minimum contribution of 8% (the employer must make a minimum contribution of 3% and the employee must make up the difference). Businesses must allow appropriate time to consult before changes are made.

Key Employment Law Cases Expected in 2019

A decision is expected in 2019 from the Supreme Court in Mencap v Tomlinson Blake about workers on sleep-in shifts, such as nurses and care workers, not being entitled to national minimum wage for time spent asleep.
We are also likely to see decisions in the supermarket equal pay claims (female shop workers seeking equal pay with male warehouse staff).

Having had the Court of Appeal’s decision in 2018 that Uber drivers are workers, we await and appeal and a decision from the Supreme Court (may be this year, perhaps next). The Independent Workers Union of Great Britain is also appealing its failed judicial review application against the Central Arbitration Committee’s decision that Deliveroo riders were not workers (no contractual obligation to perform work personally) and so were not covered by collective bargaining legislation. The union wants to represent Deliveroo riders to negotiate on issues of pay, hours and holiday with the company.

What we (likely) won’t see in 2019

Good Work Plan: The changes outlined in the government’s Good Work Plan, published in December, are unlikely to be implemented in the main until 2020. These include: improving the clarity of employment status tests; a right to a written statement of terms for workers as well as employees (and from day 1 not 2 months after starting); increasing the reference period for holiday pay purposes to 1 year rather than 12 weeks where pay varies; strengthening flexible working rights; tightening up continuity of employment rules and repealing the unpopular Swedish derogation from the Agency Worker Regulations.

Off-payroll working: Public sector off-payroll working rules are not going to be extended to the private sector until 6 April 2020. Businesses/contractors should review these changes and how they may be impacted and plan accordingly. Changes to employee NIC treatment of termination payments is also expected in April 2020.

Parental bereavement leave/pay: Legislation has been passed giving all parents who lose a child under the age of 18, or who suffer a still birth after 24 weeks, a right to two week’s lave and statutory bereavement pay (subject to meeting certain criteria). However, this is not expected to come into force until 2020.

NDAs: The Women and Equalities Commission published its report and recommendations on sexual harassment in the workplace, including limiting the use of confidentiality clauses in settlement agreements to government-approved clauses. The government will be considering these recommendations but whether there will be meaningful change in 2019 is yet to be seen.

Tribunal changes: The Law Commission is closing its consultation this month on how employment law cases are handled and whether the Tribunal system could be improved. Questions include extending time limits for issuing claims and removing the £25,000 breach of contract limit. Reponses and recommendations are expected later this year, but nothing is likely to be implemented until next year at the earliest. We may also hear something from the Ministry of Justice on the re-introduction of Tribunal fees once they have finished licking their wounds.

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