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.