It doesn’t seem five minutes since we planned our look ahead to 2016 and with a blink of an eye, the year is almost over and we’re taking a look back at what’s happened during the year in the world of employment law and HR. It’s been a relatively quiet one, although we have seen some important and interesting case decisions being made, as well as some key legislation changes. In a nutshell though, the road through 2016 looked something like this:
Zero hour contracts:
Firstly, on 11 January 2016, the Small Business, Enterprise and Employment Act 2015 introduced a redress to employees and workers who were subjected to detriments because of their failure to comply with an exclusivity clause in a zero hours contract (clauses which became unenforceable in 2015).
The provisions went further and gave employees working under a zero hours contract had the right not to be unfairly dismissed, without the need for a period of qualifying service.
Privacy in the workplace:
January also saw the case of Barbalescu v Romania in the European Court of Human Rights (ECHR) which reminded us, despite the media hype, that employers do not have an outright freedom to monitor an employee’s use of email and computer systems and consideration still needs to be given to relevant policies (explaining that monitoring may/will take place) and the business need.
National living wage:
1 April 2016 saw the introduction of the national living wage, essentially an extra band of minimum wage for those aged 25 and over. The initial rate was set at an additional 50p per hour (meaning the minimum wage for a worker aged 25 is £7.20, until the next rise in April 2017).
Rates and limits:
As normal, 6 April 2016 saw an increase in certain statutory payments and the limit on Tribunal awards. For example, the limit on a week’s pay (for redundancy and unfair dismissal purposes) increased from £475 to £479, meaning the maximum statutory redundancy payment or unfair dismissal basic award increased from £14,250 to £14,370.
We can’t really recap on the year without mentioning the UK’s vote to leave the EU in June, but the effect the decision will have on employment law (and when any changes will take place) is still very much up in the air!
Many aspects of UK employment law are already outside the scope of EU legislation and the government haven’t given any indication that we should expect dramatic changes to employment laws following Britain’s exit from the EU, but it is possible that changes could be made to TUPE legislation, agency worker rights and discrimination.
Since October, Tribunals have been offering to undertake an impartial and confidential assessment at an early stage of proceedings, with an Employment Judge providing an independent opinion on the strengths, weaknesses and risks of a claim and defence.
Conducted with a view to reaching settlement between the parties, the views expressed by the Employment Judge at the assessment are not binding and strictly confidential. If settlement does not occur, the assessing Judge will play no further part in the case.
It will take a little while for the statistics to reveal whether or not judicial assessment is having an effect on proceedings, but it will be an interesting one to watch.
With the emerging ‘gig economy’, the use of temporary positions and short-term engagements is on the rise, with an estimated 5 million UK workers employed on such basis. One of the best-known companies with this work structure is Uber, the online taxi-booking company, who are currently amidst an Employment Tribunal claim brought by the GMB Union on behalf of some of the drivers.
At the end of October, a preliminary decision was handed down by the Employment Tribunal, deeming Uber drivers to be “workers” (as opposed to employees or self-employed contractors). This decision means the drivers are entitled to some employment law rights, such as a minimum wage and protection under whistleblowing and discrimination legislation.
On the day the Judgment was handed down, Uber commented that it would be appealing and so this will no doubt be a hot topic.
Holiday pay and commission:
The long running issue of whether to include commission in holiday pay appears to have concluded in 2016, with the decision in Lock v British Gas Trading being handed down by the Employment Appeal Tribunal in February and the Court of Appeal in October. Both Courts agreed with the initial Employment Tribunal ruling that the Working Time Regulations 1998 could be interpreted so as to include results-based commission in a holiday pay calculation (in respect of the basic four weeks’ annual leave).
October was a busy month for the Courts as we also saw a ruling in the Northern Irish case of Lee v Ashers Baking Company, concerning the conflict between religious beliefs and sexual orientation discrimination in the supply of goods and services.
In a two year legal battle over the icing on a cake, the Northern Ireland Court of Appeal handed down its Judgment in October, stating that Ashers’ decision not to fulfil Mr Lee’s order and ice “Support Gay Marriage” on his cake, amounted to direct discrimination, without breaching their rights to freedom of thought, conscience and religion and freedom of expression.
2017 has a few changes lined up already, with the introduction of gender pay reporting and the apprenticeship levy, and important case decisions such as the Uber status case. We’ll blog about these changes nearer the time, but if you have any HR or employment law queries, please contact Catharine Geddes or another member of LA’s Employment and HR Team.