There can be little doubt that Brexit, Donald Trump and Love Island stole the headlines in 2017 but it was also a busy year for employers. So as the year draws to a close, and we all look forward to Christmas, now is a good time to reflect on what we learnt in 2017, writes Jamie Meechan.
Tribunal fees abolished
What better place to start than with the Supreme Court’s decision in August 2017 that employment tribunal fees were unlawful and are abolished with immediate effect. Since fees were introduced in 2013 there had been a 70% drop in the number of claims. Employers should prepare for a reverse in that trend with the reversal of fees. For more information about how to protect your organisation, see our recent blog here.
The fee refund scheme is now open for anyone who has paid a fee between July 2013 and July 2017 to apply for a refund (and that includes employers, for example, who may have paid a judicial mediation fee; or were ordered to pay a Claimant’s fees).
Uber and the gig economy
Uber has rarely been far from the headlines this year; losing its private hire licence in London and concealing a major data breach. For employers it will be the company’s legal battle in relation to the status of its drivers that might be of particular interest. Uber is just one of the many “employers” who have found that individuals who they engaged under contracts designed to create a self-employment relationship were in fact workers and therefore entitled to certain basic employment rights (such as NMW, holiday pay, whistleblower and discrimination protections). It is more important than ever for organisations to ensure that contracts are well drafted and that the correct contract is used for the correct arrangement.
Employment status is likely to stay high on the agenda next year with the Supreme Court hearing Pimlico Plumbers’ appeal against the decision that their plumbers were workers and not self-employed.
2017 was also the year we learnt that regular voluntary overtime should be included in holiday pay calculations, in certain circumstances (Dudley Metropolitan Borough Council v Willets and others UKEAT/0334/16/JOJ).
Another important holiday pay decision was handed down at the end of last month, in King v Sash Window Workshop Ltd. In this case the European Court of Justice held that a salesman, who had been engaged on a self-employed basis but was in fact a worker, was entitled to carry over annual leave he had been unable to take going back indefinitely (and be paid in lieu of that on termination); and any limitation on that right would be incompatible with EU law. An important factor in this case was that the “employer” had denied Mr King the right to paid holidays, and the potential implications are significant. We may see challenges being brought against the “two year cap on unlawful deductions claims” and the “three month gap breaking the series of deductions” rule.
With the Christmas holiday season just around the corner, employers should ensure that their holiday pay procedures and calculations are compliant, or they may find themselves with a lump of coal for Christmas (or more likely defending employment tribunal claims in the New Year).
The courts and tribunals hand down decisions each year in relation to discrimination law, and of particular interest this year was the increase in the bands used to calculate compensation for injury to feelings awards in discrimination claims.
Compensation for successful discrimination claims is potentially uncapped; and there is no minimum length of service required to bring a discrimination claim. Employers should ensure that they are aware of their obligations under the Equality Act 2010; that they have an effective and up to date Equal Opportunities Policy; and that employees and workers receive Equality and Diversity training.
NMW and sleepover
We also learnt this year that workers may be entitled to be paid the National Minimum Wage when sleeping. This came after the Employment Appeal’s Tribunal decision in Focus Care Agency Ltd v Roberts UKEAT/0143/16/DM, that the workers in that case were entitled to NMW when carrying out “sleep-in” shifts.
With civil and criminal penalties; as well as potential wages claims from underpaid workers, not to mention the Government’s ‘naming and shaming’ scheme, it is more important than ever for employers to ensure that they are complying with the National Minimum Wage rules.
GDPR has been one of the real buzz words in 2017, and it is hardly surprising with substantial fines (up to 20 million euros or 4% of worldwide turnover, whichever is greater) for employers who get it wrong.
The regulations will come into force in May 2018 and apply to businesses and organisations of all sizes. Employers should carry out audits of the personal data that they collect and process to ensure GDPR compliance. Employment contracts and policies should be reviewed; privacy notices should be updated (or drafted) and employers may have to appoint a Data Protection Officer.
For more information, visit our GDPR hub here.
Gender pay gap reporting
The gender pay gap reporting regulations came into force this year. Employers in the private and voluntary sector with a headcount of 250 or more must publish their first report before 4th April 2018, based on data to 5th April 2017.
Big names have started to publish their reports, with Shell’s report showing that its female employees earn on average 22% less than its male employees. Employers who have not already published their reports should be preparing now; and considering ways to mitigate any reputational damage that may result from the report.
No look back at 2017 would be complete without at least mentioning it. There are still many unknowns, and with much of UK employment law deriving from or being influenced by EU law and decisions from the EU courts, and the biggest changes likely to be in relation to immigration law, employers should watch this space in 2018. We will keep you updated.
At the end of November, UK Visas and Immigration published their quarterly report showing that over £7million in fines for illegal working were handed down to employers in the UK in the second quarter of 2017. Employers should ensure they are complying with UK immigration law; and that their contracts and practices are compliant.
Overall, it has been a busy 2017 for employment law and employers could be forgiven (although not by the courts and tribunals) for struggling to keep up. It doesn’t look like 2018 will be any quieter. Eating more healthily; and taking up a new hobby are perfectly good New Year’s resolutions, but for employers the resolution should be to keep up to date; review current practices and contracts; and ensuring compliance. In the meantime, have a lovely Christmas!
- Jamie Meechan is a solicitor at MacRoberts