Lewis Silkin is widely recognised as a leading specialist employment law practice. Our team of over 100 UK and lawyers, includes 23 partners. Clients range from large corporations and PLCs to entrepreneurs, and include those in variety of sectors including advertising and marketing, media and entertainment, retail, hospitality & leisure, technology, professional services, financial services and sports business. Lewis Silkin is the UK member of Ius Laboris, the world’s leading HR practice, and is also the UK representative of the Global Advertising Lawyers' Alliance (GALA), an international alliance of lawyers with expertise in advertising and marketing law.
Employment & Benefits
The Employment Appeal Tribunal has confirmed that when considering whether there has been a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations, a tribunal must identify the relevant activity. Further, the analysis must be conducted in the right order and any fragmentation should be considered when determining whether activities carried on by the subsequent service provider are fundamentally the same as those carried on by the outgoing service provider.
The House of Commons Women and Equalities Committee has published a report on sexual harassment in the workplace highlighting five points on which it is calling on the government to take action. The committee's call to put sexual harassment at the top of the agenda for both the government and employers is timely, although it remains to be seen what effect the recommendations will have and whether specific legislative proposals will emerge in response.
The Court of Appeal has decided that care workers carrying out so-called 'sleep-in' shifts are not entitled to the national minimum wage for the whole shift, but rather only when they are required to be awake and working. In so ruling, the court has overturned various earlier decisions of the Employment Appeal Tribunal and contradictory guidance from Her Majesty's Revenue and Customs, which would have exposed the care sector to claims for arrears of pay worth hundreds of millions of pounds.
Although massively contentious, the government's white paper proposals on the relationship between the United Kingdom and the European Union post-Brexit add some flesh to the bones of what future interrelation between the two entities may look like. But what are the key points for employment lawyers?
The EU Withdrawal Bill has received royal assent and become the EU (Withdrawal) Act 2018. As a result of the act, it is now law that the United Kingdom will leave the European Union at 11:00pm on 29 March 2019, with the European Communities Act 1972 being repealed. Only fresh legislation could delay or overturn the United Kingdom's departure. What does this mean from an employment law perspective?
In the latest development regarding worker status and the gig economy, and applying the recent Supreme Court decision in Pimlico Plumbers, the High Court has rejected the Independent Workers of Great Britain trade union application for a judicial review of the Central Arbitration Committee's decision that Deliveroo riders are not workers based on the terms of Deliveroo's substitution clause.
Over the past few months, the United Kingdom has gone from shivering in sub-zero temperatures to experiencing one of the hottest summers on record. Although the sun may be more welcome than the snow, it can still cause headaches for employers. As such, there are a number of factors that they should keep in mind when the mercury starts rising.
In the latest major development in a series of cases on employment status, the Supreme Court rejected an appeal by Pimlico Plumbers and confirmed that a self-employed plumber should have been classed as a worker. In a unanimous judgment, the court upheld the previous decisions, ruling that the employment tribunal had been entitled to find that the plumber was a worker and that he was in employment for the purposes of protection from discrimination.
The government intends to introduce legislation that requires all UK-listed companies with more than 250 employees in the United Kingdom to report annually on the difference in pay between their chief executive officer and their average UK worker. However, compiling the data required to produce the reports will be another headache for overstretched legal, human resources and payroll teams.
The government has launched a consultation to tackle non-compliance with the IR35 regime in the private sector. If the main proposal is implemented, businesses engaging individuals who supply their services via their own company or partnership (intermediary) will be responsible for determining whether the IR35 rules apply. If so, the party paying the intermediary will be responsible for operating pay-as-you-earn tax and national insurance contributions on the fees that it pays to the intermediary.
In the latest decision on employment status in the gig economy, the Employment Appeal Tribunal (EAT) has dismissed Addison Lee's appeal against an employment tribunal decision that its cycle couriers were workers and therefore entitled to holiday pay. The EAT upheld the tribunal's findings that the established practice and expectation of both parties was that the couriers would carry out work as directed, which was sufficient to prove that they were workers under the legal test.
The Employment Appeal Tribunal recently indicated that enhancing maternity pay, but not pay for shared parental leave, may give rise to indirect sex discrimination claims by fathers. Indirect discrimination was always expected to prove a much greater challenge to employers paying different rates of pay to women on maternity leave and parents taking shared parental leave. Unfortunately, the tribunal's decision has not resolved this issue.
The Equality and Human Rights Commission is adopting a rigorous approach to the enforcement of the gender pay gap reporting regime. It recently confirmed in a Freedom of Information Act request that it has sent 1,456 letters to employers that it believes have failed to comply with the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 and indicated that it will be investigating every company that has failed to comply.
Her Majesty's Revenue and Customs has published guidance on the new rules that require income tax and national insurance contributions to be paid on all payments in lieu of notice from April 6 2018. While the guidance had been eagerly awaited, given the uncertainty over how the rules will operate in practice, a number of questions remain unanswered.
The Employment Appeal Tribunal has decided that failure to pay a father his full salary during shared parental leave does not constitute sex discrimination in circumstances where a mother taking maternity leave during the same period would have received full pay. The tribunal held that a woman on maternity leave and a man taking shared parental leave are not in comparable circumstances. Further, the Equality Act allows special treatment to be given to women in connection with pregnancy or childbirth.
New tax rules will mean that income tax and national insurance contributions must be paid on all payments in lieu of notice from April 6 2018. However, the new rules are complex and although Her Majesty's Revenue and Customs has confirmed that it will soon issue guidance on how they operate in practice, further details published recently have only added to the confusion.
Media outlets have reported that Her Majesty's Revenue and Customs has initiated a crackdown on unpaid internships, including sending letters warning that workers must be paid the national minimum wage and setting up teams to tackle the problem. Organisations that fail to pay the minimum wage to interns who are workers may be penalised and the individuals could bring claims for back pay.
The government has published its Good Work Plan in response to Matthew Taylor's review of modern working practices. While the response sets out the government's intention to proceed with nearly all of the review's recommendations, it lacks specific proposals and much of the detail will be subject to further consultation. Acknowledging that employment status in particular is a complex area, the government has put forward no firm proposals.
Income tax and national insurance contributions must be paid on all payments in lieu of notice from April 6 2018. The new rules emerged from a government consultation on the simplification of the tax treatment of termination payments. However, far from simplifying their taxation, the rules impose a complex administrative burden on employers and are likely to increase the costs to both employers and employees.
How relevant are the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) in the context of a share sale? A recent Employment Appeal Tribunal decision provides a reminder that TUPE can easily come into play when a buyer is considering what to do with its newly acquired subsidiary. In this case, the buyer's actions led to an unexpected TUPE transfer and a £3.5 million bill.
The Employment Appeal Tribunal has issued a decision on the application of the Transfer of Undertakings (Protection of Employment) Regulations in the context of an offshoring of services and whether a transferring employee is entitled to protection of his or her salary terms if he or she relocates to the new place of operations in the transferee's home jurisdiction. The tribunal stated that the regulations permit variation of contracts, but the changes must be agreed by both the employee and the employer.
The Employment Appeal Tribunal recently held that where the effective date of termination is in dispute in an unfair dismissal case, a tribunal can hear evidence of pre-termination negotiations if it is relevant to determining the issue. It held that the fact and content of pre-termination negotiations can be referred to in automatically unfair dismissal cases, as well as in relation to discrimination or breach of contract claims, unless the discussions are covered by the 'without prejudice' rule.
Employment Appeal Tribunal confirms that employer's attempt to bypass collective bargaining is unlawfulUnited Kingdom | 07 February 2018
The Employment Appeal Tribunal recently confirmed that offers made directly by an employer to its employees may constitute unlawful attempts to bypass collective bargaining contrary to Section 145B of the Trade Union and Labour Relations (Consolidation) Act. The tribunal held that the fact that collective bargaining had continued in this case did not prevent the employer's direct offers from having the prohibited result.
The Employment Appeal Tribunal recently confirmed that it is unlawful for employers to discriminate against employees because of a perceived disability, even where an employee is not disabled under the relevant legal test. It held that disability discrimination based on a perception works in the same way as discrimination of other protected characteristics; therefore, even an incorrect assumption about a health condition still constitutes direct disability discrimination.
A recent High Court judgment in a case concerning supermarket chain Morrisons has illustrated how employers may be liable for the wrongful acts of rogue employees. The court held that Morrisons was indirectly liable for the disclosure of personal payroll data by an aggrieved internal auditor, despite the fact that it had upheld its security obligations, on the grounds that the auditor had acted in the course of his employment.
In its Autumn 2017 Budget, the government indicated for the first time how it intends to respond to the recommendations made by Matthew Taylor in his review of modern working practices. Previously, the government had been relatively quiet about how it would take those recommendations forward. However, in the budget, it committed to publishing an employment status discussion paper as part of its response to the review.
The chancellor of the exchequer announced in the Autumn 2017 Budget that there would be a consultation in 2018 to tackle non-compliance with IR35 rules in the private sector. While extending the reforms to the private sector might help to level the playing field between it and the public sector, such a change would also increase burdens and costs for businesses.
The European Court of Justice has ruled that where workers are not granted paid annual leave to which they are entitled under the EU Working Time Directive, they must be able to carry over and accumulate holiday rights from year to year and be compensated for these on termination of employment. The ruling has significant implications for UK businesses that have wrongly classified individuals as self-employed contractors, as workers could claim years' worth of unpaid holiday pay.
After a brief pilot scheme, the full scheme for refunding employment tribunal fees is now open for use. It can be used immediately by all claimants and respondents who have paid a fee during employment tribunal proceedings or during an appeal to the Employment Appeal Tribunal. Employers that have been involved in employment tribunal proceedings in the past few years should think carefully about whether they can reclaim any fees.
The Central Arbitration Committee (CAC) has rejected an application from the Independent Workers' Union of Great Britain for collective bargaining rights in respect of Deliveroo riders. In the first high-profile worker-status decision to find in favour of a company in recent times, the CAC held that Deliveroo's riders have a genuine right to use a substitute to perform deliveries before and after they have accepted a job, which riders take advantage of in practice.
The Employment Appeal Tribunal recently upheld the Employment Tribunal decision that drivers engaged by Uber are workers rather than independent contractors. The decision has been eagerly awaited by human resource and employment practitioners seeking guidance on how to apply the test for worker status properly in the context of gig economy businesses. However, the judgment is highly fact-specific and other cases concerning gig economy businesses may not be decided in the same way.
The Advisory, Conciliation and Arbitration Service has published a guide to promoting positive mental health in the workplace. The guide highlights the benefits for employers in proactively addressing this issue and sets out a step-by-step process to help them to achieve the key objectives of tackling the causes of work-related mental ill health, creating a culture where employees can talk about their mental health and supporting employees who are experiencing mental ill health.
The proposed Parental Bereavement (Pay and Leave) Bill – which aims to provide a statutory right to paid leave for employed parents who suffer the loss of a child – was recently introduced in Parliament. Previous attempts to introduce paid leave in these circumstances have been unsuccessful. However, the new bill has the government's support and is likely to become law.
The government has launched the first stage of its scheme for refunding employment tribunal fees following the Supreme Court's decision that the fees system was unlawful. The first stage will involve 1,000 people being contacted to apply for a refund, after which the full scheme will be rolled out. Employers should register their interest now and locate their Employment Tribunal order and proof of payment, in preparation for making an application when the full scheme opens.
Only 80 of the estimated 7,000 employers with 250-plus employees have uploaded their gender pay gap reports to the government's website. The snapshot from these reports reveals that the mean, mean pay gap and the mean, median pay gap are lower than expected. Further, the data shows a steady progression from a preponderance of female employees in the lowest paid quartiles to a preponderance of male employees in the highest paid quartiles. However, these statistics may not be reliable.
The government recently published the Finance Bills 2017 and 2018, which contain the latest proposals for changes to the tax and national insurance treatment of termination payments. The updated legislation, which is likely to be enacted, simplifies the rules regarding non-contractual payments in lieu of notice. However, the circumstances in which foreign service exemption or relief will be abolished have been widened.
The Employment Appeal Tribunal (EAT) recently ruled that individuals working in Asda retail stores can compare themselves with hypothetical distribution workers, allowing the United Kingdom's largest private sector group's equal pay claim to proceed. The EAT rejected Asda's argument that the Equality Act 2010 had altered the law when replacing the relevant section of the Equal Pay Act 1970 and upheld the use of hypothetical comparators where no actual comparators work at the claimant's establishment.
The government recently announced that it will take forward a number of proposals for corporate governance reform relating to employment, including proposals on executive pay ratio reporting, which echo the new gender pay gap reporting requirements. However, it remains to be seen whether the government will take on board some of the lessons of gender pay gap reporting or whether this will become another public policy initiative which produces misleading results and does little to tackle the underlying problem.
The Employment Appeal Tribunal has clarified that regular voluntary overtime payments form part of normal remuneration and should be included in the calculation of holiday pay for the purposes of the four weeks' minimum annual leave entitlement required by EU law. Employers should now review their overtime arrangements and approach to calculating holiday pay to ensure compliance with this decision.
The Supreme Court recently ruled that employment tribunal fees are unlawful. The case has significant constitutional and political implications, but also raises a number of thorny practical issues regarding the volume of future claims, administrative processes, refunds of historic fees and out of time claims.
The Parental Bereavement (Pay and Leave) Bill, introduced into Parliament in July 2017, would entitle employees who have lost a child to statutory paid leave to allow them time to grieve. Although this is a private member's bill, it is supported by the government and would fulfil a Conservative manifesto promise to ensure bereavement support for employees – so there is a good chance that it will become law.
The Supreme Court has unanimously ruled that the legislation requiring fees to be paid for bringing employment tribunal claims is unlawful and should be quashed. In one of the most remarkable employment law judgments of recent times, the court held that employment tribunal fees interfere unjustifiably with the right to access to justice and discriminate unlawfully against women.
The Supreme Court recently ruled that an exemption in the Equality Act 2010 allowing employers to exclude civil partners from pension benefits accrued before the Civil Partnership Act 2004 came into force is incompatible with EU law and should be disapplied. The case revolved around the retrospective application of the EU Equal Treatment Framework Directive, which prohibits discrimination in employment on various grounds, including sexual orientation.
The Review of Employment Practices in the Modern Economy – commissioned by the prime minister and chaired by Matthew Taylor – has produced its long awaited report, which contains extensive analysis of the UK jobs market and how it is likely to evolve in an era of automation and robots. If carried forward to legislation, Taylor's recommendations will have profound implications for all employers; particularly those using contractors and zero-hours and agency workers.
A recent Employment Appeal Tribunal decision concerning paid annual leave was referred to the European Court of Justice (ECJ). If followed by the ECJ, the advocate general opinion in King v The Sash Window Workshop Ltd will extend employers' liabilities in a new direction by requiring that they must provide an "adequate facility" for workers to exercise their right to paid leave.
The gig economy has drawn criticism from many quarters on the way in which some platforms operate and the rights of those working for them. In light of the increasing focus on employment status in the gig economy, the government recently launched an inquiry into the future world of work, which provides an opportunity to scrutinise and rethink how the United Kingdom regulates the relationship between 'work givers' and 'work performers'.
In two recent decisions, the Supreme Court gave a clear explanation of how the test for indirect discrimination works and decided that it is not necessary to explain why a provision, criterion or practice disadvantages a particular group in order to show indirect discrimination. This decision is not particularly helpful for employers as it makes it somewhat easier for individuals to make an indirect discrimination claim. However, the news is not all bad.
The Supreme Court recently refused permission for British Gas to appeal against an important ruling that the calculation of holiday pay should include results-based commission. However, an employment tribunal still needs to consider issues such as whether the commission scheme effectively compensated for the period of annual leave. Only then will employers have clarity about how to calculate holiday pay for those earning results-based commission.
Can an employer that has recognised a trade union for collective bargaining purposes still put an offer directly to its employees? This was addressed in a recent case in which an employer offered a pay deal directly to its employees; the Employment Tribunal found that it had bypassed the collective bargaining arrangement, resulting in a substantial financial penalty.
The recent emergence of the gig economy has brought the issue of employment status to the fore. In the latest development in a series of cases on this subject, the Court of Appeal found that a self-employed plumber should have been classed as a worker. The court held that the plumber was obliged to provide his services personally and that the company he worked for was not a customer of a business operated by him.
A recent decision of the Employment Appeal Tribunal serves as a useful reminder of how employers can fairly dismiss employees for an economic, technical or organisational (ETO) reason following a Transfer of Undertakings (Protection of Employment) Regulations transfer. The test for whether there is an ETO reason is twofold. First, the employer must establish an ETO reason, which may be relatively straightforward. However, in all cases the reason must also "entail changes in the workforce".
It seems unlikely that UK employment law will be transformed in significant ways as a result of Brexit, at least in the short term. In the medium term, the government may start to tweak the law to make it more business friendly. However, it is difficult to envisage a wholesale 'bonfire of regulations', at least without a radical cultural and political shift. In the longer term, if the United Kingdom is outside the single market, there will inevitably be a growing divergence between UK and EU employment law.
Although the Trade Union Act 2016 became law in May last year, further legislation is needed to flesh out some of its reforms and bring them into force. Now that the government has begun publishing this additional legislation, areas such as industrial action ballots, picketing and electronic ballots are likely to be affected in the year ahead.
A number of changes to employment law have taken place in the past year, including with regard to modern slavery, employment tribunals and the calculation of holiday pay. Looking ahead, some significant reforms are planned for 2017, including gender pay gap reporting, industrial action reforms and the taxation of termination payments.
The government recently launched two new consultations on reforms to the employment tribunal system and on work, health and disability. The proposed changes to tribunals are part of a wider programme of court reform intended to modernise claims handling, streamline access to justice and reduce costs. The green paper on work, health and disability is designed to help the government to comprehend why people with disabilities or long-term health conditions may struggle to find or keep a job.
The chancellor's Autumn Statement included welcome news regarding the forthcoming reform of the tax and national insurance treatment of termination payments. Among other things, the employer national insurance and income tax treatment will be aligned; the existing employee national insurance exemption on termination payment will be retained; and the distinction between the different types of payment in lieu of notice will be removed.
The government may argue in the Supreme Court that its Article 50 notice to leave the European Union could be revoked, which would contradict its argument in the High Court. While this may be a question of high politics, it highlights an issue that employment lawyers are often called to advise upon – can notice, once served, be withdrawn or rejected?
An employment tribunal recently ruled that drivers engaged by Uber are workers, not self-employed contractors, meaning that they will be entitled to the national minimum wage, paid annual leave and whistleblower protection. This is the first case to test employment status in the rapidly expanding 'gig economy' and, as such, it has received significant attention.
The first case regarding the amounts paid to men and women on shared parental leave has been decided by an employment tribunal in Glasgow. Following the decision, employers which have combined their family leave policies into a single family-friendly policy should seek advice, as it may be easier to justify a difference in treatment in relation to pay if that difference is reflected in different types of leave.
The Court of Appeal recently issued its decision in a case which raises the question of whether and how a salesperson's commission should be taken into account when calculating holiday pay. On the face of domestic legislation, commission seems to be excluded from calculations of holiday pay. However, the European Court of Justice decisions confirm that the minimum four-week holiday entitlement must be paid at a rate that reflects normal remuneration.
The House of Commons Business, Innovation and Skills Committee recently launched an inquiry into corporate governance and executive pay following new Prime Minister Theresa May's declaration that the gap between executive and workers' pay is "unhealthy". The committee also intends to explore proposals on worker representation on boards and remuneration committees.
In 2015 the government launched a consultation to simplify the tax and national insurance treatment of termination payments. A further consultation has now been published confirming the proposed changes, together with draft legislation, to take effect in April 2018. While many of the more draconian suggestions in the 2015 consultation have been abandoned, there is a sting in the tail.
The government recently called for evidence on non-compete clauses and their impact on innovation in the United Kingdom, in response to suggestions that non-compete clauses can hinder start-ups and prevent them from hiring the best talent. The call for evidence asked businesses and individuals to provide feedback on whether these provisions are acting as a barrier to innovation.
The implications of Brexit for the UK workplace could be major, as a significant proportion of UK employment law comes from Brussels. Once out of the European Union, the UK government could theoretically repeal laws such as those related to discrimination, collective consultation, transfer of undertakings, family leave, working time and duties to agency workers. But would the government do that?
A new Employment Appeal Tribunal (EAT) ruling raises important questions about when employees can have a reasonable expectation of privacy in respect of material on their personal devices. The EAT ruled that there was no breach of an employee's right to a private life when his employer used emails and photos obtained from his mobile phone by the police in the course of a criminal investigation for disciplinary purposes.
The government has recently announced a consultation on tipping to identify ways to reduce the confusion that customers often experience. A tipping system which is open to discrimination by customers could become the employer's problem. Employers should consider including provisions in employment contracts and policies that make it clear that any cash tips are between the customer and the employee, and are nothing to do with the employer.
The Trade Union Bill 2016 introduces significant reforms in relation to industrial action. These include balloting reforms, amended timeframes for industrial action following a supportive ballot and additional requirements with which trade unions must comply if they are to enjoy statutory protection for picketing during industrial disputes.
In Hills v Niksun Inc the Court of Appeal confirmed that when allocating commission, employers must exercise their discretion rationally and in accordance with the terms of the relevant contractual documentation. This case shows how the impact of the Braganza ruling – which held that when considering the exercise of power by a party to a contract, the contractual decision maker must take relevant matters into account – is still filtering through the courts.
In many civil law countries – France, Germany, Spain and Italy to name but a few – it is normal to pay for restrictive covenants during the term for which they are in force. For some time there has been debate about whether the United Kingdom might one day converge towards the continental norm. The High Court has now confirmed that the answer remains a resounding "no".
The government is committed to boosting productivity by increasing the quantity and quality of apprenticeships. To this end, it aims to create three million apprenticeships by 2020 and introduce new apprenticeship standards. Employers with a wage bill of more than £3 million will pay an annual levy of 0.5% to help to fund the initiative.
The chancellor of the exchequer has announced in the 2016 Budget that legislation will be introduced with effect from April 2018 to clarify the tax treatment of termination payments. The reforms will distinguish between payments treated as earnings and thus subject to income tax and national insurance contributions in full, and payments treated as termination payments and thus eligible for the £30,000 exemption.
Many may assume that a bank would be well within its rights to sack a foreign exchange trader for disclosing confidential client information to traders from different banks in an online chatroom. Yet a recent employment tribunal decision shows that this is not necessarily the case: context is everything.
Following the government's failure to deliver its promised Christmas gift of draft gender pay gap reporting regulations, it has now published its response to the 2015 consultation, along with draft regulations. As indicated in the initial consultation, employers will be given a significant period to prepare for reporting, with the first reporting required by April 2018.
The government has responded to its consultation on proposals to limit the number of postponements of employment tribunal hearings. The rationale behind the proposals is that short notice and repeated postponements cause unnecessary delays, cost and inconvenience to all parties. Although this may be the case, the government has provided no real data to prove that this is a widespread problem.
In 2015 the government banned the use of exclusivity clauses in zero-hours contracts. The ban renders unenforceable any contractual provision which prohibits an individual working under a zero-hours contract from working elsewhere. The government recently introduced new legislation designed to strengthen the ban, giving employees and workers the right to bring a tribunal claim if they are penalised for working elsewhere.
Another case has come to light in which an employer's failure to notify the Department for Business, Innovation and Skills of proposed redundancies has led to criminal proceedings. This follows the recent charges brought against David Forsey, the chief executive officer of Sports Direct. The latest case concerned charges against three former directors of the courier firm City Link.
The Financial Conduct Authority and the Prudential Regulation Authority have published long-anticipated new rules aimed at encouraging whistleblowing. The new rules reflect the regulators' commitment to put mechanisms and protections in place to encourage a culture of reporting concerns and challenging poor behaviour.
The Insolvency Service recently pressed charges against the chief executive officer of Sports Direct for failure to file Form HR1. While a considerable degree of caution should be exercised before drawing conclusions from a single case, the decision may indicate the government's increasing willingness to press charges against individuals for breach of the Trade Union and Labour Relations (Consolidation) Act 1992.
An employment tribunal recently found that an exploited migrant worker was the victim of unlawful discrimination because of her caste. It found that caste is immutable and hereditary, and fits readily into the category of descent, so it may be considered an aspect of race. However, if a prospective claimant's caste is not so closely connected to descent, it may prove harder to bring a claim of race discrimination.
The government's Fit for Work service has finally been rolled out nationwide. Fit for Work, which has been generally welcomed by general practitioners, offers advice and guidance to employers and employees about work-related health matters. While free occupational health advice is valuable to all employers, its success will depend on the standard of the service delivered.
The controversial Trade Union Bill has had its first reading in Parliament. The business secretary, Sajid Javid, has proposed reforms which have been called "the biggest crackdown on trade union rights for 30 years". If passed, they will be the most radical changes to the law on strikes and picketing since the 1980s.
The new Conservative government's legislative programme for the upcoming parliamentary session contains a number of proposals which will affect employment law in various ways. This update outlines these proposals, along with certain other reforms that the Conservative Party has previously indicated that it intends to implement.
The European Court of Justice has issued its judgment in the long-running Woolworths case concerning collective redundancy consultation, ruling that the approach under UK legislation of treating each physical establishment of the employer separately for these purposes is consistent with EU law. This outcome is beneficial for multi-site employers, as it makes their collective redundancy obligations easier.
In the eagerly anticipated decision of Lock v British Gas Trading Ltd a tribunal has held that the Working Time Regulations 1998 should be interpreted so as to include commission payments in holiday pay calculations in respect of the four weeks' annual leave entitlement under the EU Working Time Directive. This is the latest decision in a line of cases which have considered how holiday pay should be calculated.
In 2013 the government announced that employers would soon benefit from free occupational health advice, potentially saving them millions of pounds in sick pay. In late 2014 the Fit for Work website finally went live. For now, the scheme is merely a source of information. The real test will come when its referral service is rolled out nationwide later this year.
Following Bear Scotland v Fulton, in which the Employment Appeal Tribunal decided that non-guaranteed compulsory overtime should be taken into account when calculating holiday pay, the government has announced that it will impose a two-year limit on claims for retrospective holiday pay. This will protect businesses from the impact of the decision and give workers certainty regarding their rights to holiday pay.
The Employment Appeal Tribunal has confirmed that workers are entitled to be paid normal remuneration for their minimum four-week holiday entitlement under EU law, which includes overtime which the employer is not obliged to provide but which must be undertaken by the worker if requested. However, the judgment also limits the scope for workers to pursue historic claims for holiday-pay arrears.
The Conservative Party recently announced plans to replace the Human Rights Act with a British Bill of Rights and Responsibilities if it wins the next general election. The purpose of the change is to ensure that UK courts are no longer bound by the decisions of the European Court of Human Rights. This proposed change could have implications for employment law if implemented.
Prime Minister David Cameron has promised that he will renegotiate the conditions of the United Kingdom's EU membership and put the new terms to the public in an 'in-out' referendum in 2017. If he makes it that far, what will happen to all EU-derived employment law that has become entrenched in the UK legal system, including discrimination rights, holiday entitlement, duties to agency workers and data protection obligations?
On September 18 2014 the people of Scotland will vote on whether their nation should be an independent country. An independent Scotland would most likely be cautious about making abrupt changes. However, over time certain employment laws would most likely be adapted or abandoned, meaning that Scotland's employment law landscape might evolve to be quite different from that in England, Wales and Northern Ireland.
In 2013 the issue of zero-hours contracts – under which work is not guaranteed – became highly contentious. Some have pressed for banning these contracts altogether, while others have focused on perceived abuses, such as the use of exclusivity clauses prohibiting alternative employment. The government has now announced that it intends to ban such exclusivity provisions, although this has raised further issues.
The European Court of Justice recently ruled in Lock v British Gas Trading Ltd that EU law requires a worker's statutory holiday pay to take commission payments into account – it should not be based solely on basic salary. The case is not over yet, as it will now go back to the UK employment tribunal, but its outcome could potentially be costly for employers with workers who are entitled to commission.
The legal right to request a flexible working arrangement in the United Kingdom has been extended to all employees with 26 weeks' service. Employers should review and amend their existing policies on flexible working and home working, and consider how they will prioritise requests and document any agreed changes. Managers should also be trained so that they are fully equipped to deal with requests under the new regime.
Can a member of a limited liability partnership also be a 'worker' so as to qualify for the legal protection afforded to whistleblowers? The Supreme Court has answered this question in the affirmative in Clyde & Co LLP v Bates van Winkelhof, in which the Court of Appeal took the opposite view. The ruling has important implications for law firms and other professional partnerships.
This week Lewis Silkin outlines the benefits and risks that employers should consider before introducing a 'bring your own device' (BYOD) policy in the United Kingdom. Although BYOD can improve employee productivity, data also becomes more difficult to monitor. The UK Information Commissioner's Office has issued crucial guidance on managing the risks of data misuse, which employers are advised to consider.
The United Kingdom recently introduced two important reforms to employment tribunal proceedings. The first of these, early conciliation, is a scheme to encourage the resolution of workplace disputes before tribunal proceedings are issued. The second is a new discretionary power for employment tribunals to impose a financial penalty on an employer where it has breached a worker's rights.
Employers are most likely to encounter the concept of 'without prejudice' in the context of performance issues or exit negotiations. Conversations and correspondence covered by the concept will not be admissible in subsequent litigation, so as to encourage parties to settle their differences out of court. However, can employers be sure that particular discussions designated as without prejudice really are protected?
Significant changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) recently came into force. Overall, the changes should introduce welcome flexibility for employers, particularly where they need to change workers' terms and conditions or implement redundancies in a transfer scenario. However, the reforms seem unlikely to resolve many of TUPE's inherent complexities.
The Department for Business, Innovation and Skills has launched a public consultation on the use of zero-hours contracts, under which individuals work only when they are needed and are paid only for the hours that they work. The consultation report seeks to address the misuse of exclusivity clauses in employment contracts – that is, those that prevent employees from working elsewhere, even when they have no guarantee of work.
The use of social media in a business context is still relatively new. With employees using websites such as LinkedIn for both personal and professional purposes, employers are becoming increasingly aware of the business risks associated with such use. Two recent cases shed light on the extent to which an employer can control or access an ex-employee's LinkedIn account to protect its own business on termination of employment.
The government and UK businesses want the United Kingdom to have maximum access to the single market following Brexit, but the European Union has stated that single market membership is conditional on allowing free movement of persons. There are a number of possible compromises that could enable the United Kingdom to continue to participate in the single market while retaining at least some control over migration.