Employment Law 2017 - What to look out for

1.Gender Pay Gap – implementation and guidance

The final Gender Pay Gap Regulations which were published in early December 2016 will come into force on 6 April 2017. The snapshot date to carry out the data analysis is now 5 April 2017. Non statutory guidance will be published by the government after Parliament has approved the regulations. Acas has also indicated that it will publish guidance. Firms that employ 250 or more employees should be preparing to calculate pay gap figures.

2.Brexit

Whilst immediate changes to employment law are unlikely, there should be more clarity in 2017 as to what Brexit will mean for the UK. It has been mooted that the government may take the opportunity to make some changes, for example to the Agency Workers Regulations, TUPE and holiday entitlement. Miller and Dos Santos’s challenge to the Brexit process was heard in the Supreme Court in December 2016 and judgment is expected in early 2017. Firms should be identifying how many EU nationals they have and monitoring the situation with regard to their right to stay in the UK. EU nationals should be offered support and guidance where possible. Separately, Theresa May has indicated that the government will seek a trade deal for goods and services outside the single market.

3.Gig economy

The results of three inquiries into the changing face of the world of work are expected in 2017. Following the exposure of working practices at Sports Direct, the use of agency staff at Asos, concerns about couriers at Hermes and growing questions around the status of those working in the on-demand economy, the Business, Energy and Industrial Strategy committee launched an inquiry into the future world of work. The inquiry focuses on the rapidly changing nature of work and the status and rights of agency workers, the self-employed and those working in the gig economy. Evidence sessions begin early in 2017.

Separately, the Work and Pensions Committee launched an inquiry to consider whether the UK welfare system adequately supports those working in the gig economy, and an independent review of employment practices in the modern economy is underway, led by Matthew Taylor, Chief Executive of the Royal Society of Arts.

Against the background of recent cases (Uber, Deliveroo, CitySprint) this is an area to be watched. Uber is appealing the decision that drivers are workers.

4.Worker status

The Court of Appeal will be considering the appeal by the employer in Pimlico Plumbers v Smith in January 2017. In this case, Pimlico Plumbers held its plumbers out to customers as being employees. They were required to wear uniforms and to drive vans with the Pimlico Plumbers logo and could only be contacted by customers through Pimlico. In this case, the EAT found that the drivers were self employed workers but not employees.

5.Trade Union Act changes

The Trade Union Act 2016, which amends the received royal assent in May 2016 but many of its provisions have yet to come into force. These changes include requiring at least 50% of all eligible members to have voted in favour of action in a ballot; regulations for public services which are due to come into force with effect from 1 March 2017; requirements with relation to the voting paper.

In outline, the 2016 Act makes the following changes:

·         requirements for minimum ballot thresholds - a 50% turnout in all industrial action ballots, and a 40% support requirement in favour of industrial action for specified           important public services in six sectors;

·         an independent review on the delivery of secure methods of electronic balloting in relation to industrial action ballots;

·         information requirements relating to industrial action: the information that must be included in the ballot paper; and information to be given to union members and to           the Certification Officer following a ballot;

·         the arrangements for the timing and duration of industrial action;

·         requirements on unions for the supervision of picketing;

·         political funds: persons who join a trade union after commencement shall be required to make an active choice before contributing to a union's political fund;

·         regulation-making powers in respect of paid time off for trade union duties and activities in the public sector;

·         restriction of the deduction of union subscriptions ("check off") from wages by relevant public sector employers where:-

Ø  workers do not have the option to pay subscriptions through other means and;

Ø  arrangements have not been made for a union to make reasonable payments to the employer for the making of those deductions. 

6.Apprenticeship levy

Draft regulations implementing the apprenticeship levy were published in 2016. The draft regulations will amend the Income Tax (PAYE) Regulations 2003 with effect from 6 April 2017. The primary legislation setting out the apprenticeship levy is contained in Part 6 of the Finance Act 2016. The levy will be a levy on employers operating in the UK to fund new apprenticeships. The levy will be charged at a rate of 0.5% of an employer’s pay bill. Employers will receive an annual allowance of £15,000 to offset against their levy payment. Employers not subject to the rules on connected employers will only have to pay the levy if their pay bill exceeds £3million in a given year.

7.Holiday pay claims

British Gas has sought leave to appeal to the Supreme Court to clarify the calculation of holiday pay under the Working Time Regulations (WTR) and whether results-based commission should be included in the calculation of the statutory four weeks’ holiday pay. The Court of Appeal decided in October 2016 that wording should be included to amend the WTR to conform with the WT Directive so as to include such commission. The Court rejected British Gas’s argument that such an interpretation would be in breach of the law (the WTR).

In this case, the government intervened in support of Mr Lock so it is unlikely that it would take steps to reverse any decision that went his way post-Brexit.

Separately, in Sash Window Workshop v King, the CJEU has been asked to rule on the remedies open to a worker when they have been refused paid leave, in particular whether a worker can carry forward untaken holiday entitlement indefinitely.

An EAT decision is also awaited in Fulton and another v Bear Scotland as to whether statutory holiday pay should include overtime pay.

8.Employment Tribunal fees challenge

The Supreme Court will hear Unison’s legal challenge to ET fees in R (on the application of Unison) v Lord Chancellor on 27/28 March 2017. In the Court of Appeal, it was found that there was insufficient evidence that the ‘striking’ drop in ET applications was due to claimants’ inability to pay. Should the Supreme Court find in favour of Unison it is expected that tribunal applications will increase. It is expected that the Ministry of Justice’s post-implementation review of employment tribunal fees will be published early in 2017.

9.Whistleblowing

Court of Appeal decisions are awaited in two whistleblowing cases: Chesterton Global Limited v Nurmohamed and Royal Mail Group Limited v Jhuti.

Nurmohamed (to be heard in June 2017) considers the meaning of the words ‘in the public interest’ in the whistleblowing legislation. The EAT ruled that it was not necessary to show that the disclosure was of interest to the public as a whole and a relatively small group would suffice.

In Jhuti (to be heard at the end of June 2017) the EAT held Ms Jhuti had been automatically unfairly dismissed for making protected disclosures even though the dismissing officer had been unaware of the disclosures, but had been ‘manipulated’ by another manager who had been aware of them.

10.Subject access requests

A Court of Appeal decision and guidance is awaited in Dawson-Damer v Taylor Wessing in relation to the issue of ‘disproportionate effort’ in response to subject access requests under the Data Protection Act 1998. The EAT in this case held that it was not reasonable or proportionate for a firm to carry out searches of files going back 30 years to determine whether information was protected by legal professional privilege.

11.  Human Rights

An application has been lodged to the European Court of Human Rights in Brough v United Kingdom to determine whether the absence of legal protection against blacklisting trade union activists was in breach of Article 11 European Convention on Human Rights (ECHR) (right to freedom of association).

An application has also been lodged in the case of Mattu v UK to determine whether the right to a fair hearing under Article 6 ECHR applies to internal disciplinary proceedings.

12.Disability Discrimination

The Court of Appeal is expected to hear the appeal in Carreras v United First Partnership Research Ltd by 28 July 2017. The EAT in this case found that an expectation on the part of the company that employees should work long hours was a provision criterion or practice for the purposes of a disability discrimination claim. The EAT made clear that this was not a ‘requirement’ on the part of the employer but that the workplace culture was such that long hours were expected and routine.