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Employment Law - What to Expect in 2018

on Friday, 05 January 2018.

2017 was a significant year for employers and employees alike, with the Taylor Review offering an insight into the gig economy and the Supreme Court's momentous ruling on tribunal fees. What, then, can be expected of 2018?

Employment Status

It is likely that employment status will continue to be a hot topic in 2018, with individuals designated as self-employed by their employer seeking the protections offered by worker or employment status. The key issue of personal service will be scrutinised in February by the Supreme Court in Pimlico Plumbers Ltd v Smith and it seems likely that Uber will seek leave to appeal against the Employment Appeal Tribunal's judgment holding that drivers using their App are workers when logged on and ready to work. 

In addition, the Government is expected to provide a response to the Taylor review on modern employment practices. This could have significant implications for organisations operating in the 'gig economy'.

Shared Parental Leave

The EAT is due to decide the appeals of two conflicting shared parental leave cases, Capita Customer Management Limited v Ali (heard at the end of 2017) and Hextall v Chief Constable of Leicestershire Police (due to be heard this month).

The cases centre on the question of whether it is discriminatory on grounds of sex for employers to enhance their maternity leave benefits, but to limit partners taking shared parental leave to statutory shared parental pay. The employment tribunals in these cases reached different decisions at first instance. 

Grandparental Leave

The government has previously announced plans to extend shared parental leave and pay to working grandparents by 2018.

A consultation on implementing these plans had been proposed for May 2016, however it was subsequently delayed until after the EU referendum. It is anticipated that the consultation (when it is launched) will also include options for streamlining the existing Shared Parental Leave and Pay scheme.

Pregnant Workers

In 2018, a judgment is expected from the European Court of Justice (ECJ) in Porras Guisado v Bankia SA and others following an opinion from Advocate General Sharpston that pregnant workers should be protected from dismissal even before their employer has been informed of the pregnancy.

Sleep in Staff

In 2017, following the decision in Mencap, the government decided not to levy fines against employers for underpayment of the minimum wage that pre-dated 27 July 2017 in relation to sleep in staff. However, there has remained a great deal of uncertainty as to the approach that should be taken when deciding whether employees are engaged in 'time work' whilst carrying out sleep-in shifts.

The Court of Appeal's decision in Focus Care Agency Ltd v Roberts and others is due to be heard in March this year and it is hoped this will determine the approach that should be taken. This is important as employers will be required to back-pay employees that have not received the national minimum wage.

Holiday Pay

The 2017 the ECJ's decision in Sash Window Workshop Ltd and another v King confirmed that workers who are wrongly informed they are not entitled to holiday pay may carry their holiday rights over indefinitely and be paid in lieu for any untaken holiday during their entire period of employment on termination. The Court of Appeal will consider this case in light of the ECJ's decision at a further hearing this year. This decision will be of particular relevance to individuals who have been classified as self-employed during the period of their contract but subsequently prove that there were, in fact, workers or employees.

Gender Pay Gap Reporting

On 4 April 2018 the first of the mandatory gender pay gap reports for large private and voluntary sector employers will be due. This follows the obligation on large employers to publish an annual report containing data on their gender pay gap, which was introduced for public sector organisations on 31 March 2017 and on 6 April 2017 for large private and voluntary sector organisations. Public sector employers that fall within the remit must report by 30 March 2018.

Termination Payments

From 6 April 2018, there will be changes to the way that termination payments are taxed.

The result of the changes is as follows:

  • all payments in lieu of notice will be fully taxable and subject to National Insurance, regardless of whether the employee's employment contract contains a right to pay in lieu of notice
  • the £30,000 exemption from income tax and NICs for termination payments will be retained (however the Treasury may amend the £30,000 threshold by regulations)
  • employer NICs will be payable on termination payments over £30,000

General Data Protection Regulation

The EU General Data Protection Regulation (GDPR) dominated the news in 2017 and the same can be expected in the coming year. This regulation will come into force on 25 May 2018.

The GDPR will introduce a raft of changes regarding the processing of personal data, including but not limited to:

  • greater penalties for non-compliance
  • increased requirements around record keeping and reporting
  • the requirement to include additional information in privacy notices and contracts with data processors
  • increased information security
  • a far narrower definition of consent
  • changes to the rules around the handling of subject access requests
  • new rights for individuals in relation to their data

The government intends to replace the DPA with a new Data Protection Bill, due to be debated at third reading in the House of Lords this month.

Tribunal Fees

2017 saw the abolition of employment tribunal fees in the landmark Supreme Court ruling in Unison. In the first quarterly statistics since the removal of fees, the number of claims being brought has increased significantly. This trend is expected to continue in 2018.

For further information about any of the above please contact Eleanor Boyd in our Employment Law team on 020 665 0940.

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