Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

This is a list of the principal UK legal risks, either through legislation or policy implementation, that we can foresee affecting employers over the coming months and years. The document is split into sections, please click on the link to take you to the correct section: Legislation – current or coming into force Proposed Legislation – under discussion Government Inquiries Consultations Other changes / proposed changes Recent developments Key cases on the horizon Recent significant cases

Employment Law Changes Likely / Actual

Implementation date Implications Key Links

LEGISLATION – CURRENT OR COMING INTO FORCE (back)

ENTERPRISE ACT 2016 Changes to Shop Workers Rights: Schedule 5 of the Enterprise Act 2016 will amend the Employment Rights Act 1996, and will strengthen shop workers rights in relation to Sunday working. The changes will include:

workers in large shops being required to give only one month's notice instead of the current three to object to working on Sundays

a new right for all shop workers to opt out of working more than their normal Sunday hours with one months notice for workers in large shops, and three months for workers in small shops

employers will be obliged to provide an explanatory statement notifying employees of their opt out rights, and where workers can find support and advice about their rights

where an employer fails to notify workers about their rights, the notice period will be automatically reduced from one month to seven days for large shops, and three months to one month in

No date has been set for implementation

Employers need to be aware of this change to Sunday Working, particularly around notification.

The Enterprise Act 2016 is available here

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

Employment Law Changes Likely / Actual

Implementation date Implications Key Links

smaller shops

where an employment tribunal finds that an employer failed to notify a shop worker of their rights, the tribunal can award a guaranteed minimum of two weeks pay, or four weeks where it considers it just and equitable.

Consultation on simplifying tax and NICs on termination payments The government has announced that as from April 2018, it is proposed that employer NICs (but not employee NICs) will be charged on the balance over £30,000. The existing £30,000 exemption on termination payments is to remain in place. The government is also proposing to “tighten the scope of the exemption to prevent manipulation” – again from 2018, so that all payments in lieu of notice (PILONS) become fully taxable. Watch this space for details of what form that may take. The draft Finance Bill 2017 has been published, with the proposed changes included. A technical consultation on the draft legislation which closed on 1 February 2017 Changes to taxation on termination payments has been removed from the Finance Bill 2017 to allow key provisions to receive Royal Assent in the run up to the General Election (June 2017). Changes to salary sacrifice and IR35 for the Public Sector remain. It is likely the policy will be reintroduced once a new government is formed.

Changes are expected to be included in the Finance Bill 2017 and to come into effect from April 2018.

The reduction in tax exemptions for termination payments may impact on long-term exit negotiations.

The consultation document is available here The technical consultation on the draft legislation can be found here

EU GENERAL DATA PROTECTION REGULATION (GDPR) Key issues for HR relate to:

Subject access requests: There will no longer be a £10 charge and employers will only have a month in which to respond (rather than the current 40 days).

Lawful basis for processing personal data: Some individuals' rights will be modified depending on the employer's declared lawful basis for processing their personal data. For example, people will have a stronger right to have their data deleted where

The Regulation came into force on 24 May 2016 and will apply in Member States from 25 May 2018.

Employers should review contracts, policies and processes to ensure compliance.

Read more on Outlaw.com New guidance has been released from the Information Commissioners Office, find it here

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

Employment Law Changes Likely / Actual

Implementation date Implications Key Links

consent is used as the lawful basis for processing.

Consent: Employers should review how they seek, record and manage consent and whether any changes are required.

Alternatives to consent: Consent is unlikely to be an appropriate lawful basis for the process and in some cases it won't count as valid consent. Helpfully, employers can process personal data without consent if it's necessary for a number of other reasons including e.g. a contract with the individual (e.g. to supply goods or services they have requested) or compliance with a legal obligation.

Data breaches: Procedures should be put in place to detect, report and investigate any personal data breach. The GDPR introduces a duty on all organisations to report certain types of breaches to the ICO and in some cases, to individuals.

TRADE SECRETS DIRECTIVE IMPLEMENTED This directive will introduce an EU-wide definition of "trade secret", under article 2 of the directive "trade secret" means:

information that is secret in the sense that it is not generally known or readily accessible to persons within the circles that normally deal with the kind of information in question;

it has commercial value because it is secret;

it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

The directive proposes civil law remedies where trade secrets are obtained dishonestly. It protects whistleblowers where they are acting in the public interest.

The directive was adopted on 8 June 2016, and will be implemented on 9 June 2018

This will affect the UK as the directive will be implemented across the UK before the UK leaves the EU.

More information, including the directive and FAQ's can be found here.

PROPOSED LEGISLATION – UNDER DISCUSSION (back)

Unpaid Work Experience (Prohibition) Bill This Bill is seeking to introduce a ban on unpaid work experience for a period exceeding four weeks

The bill had its first reading in the House of Lords on 27 June 2017.

Further information can be found here

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

Employment Law Changes Likely / Actual

Implementation date Implications Key Links

Parental Bereavement (Pay and Leave) Bill This Bill seeks to ensure that grieving parents are granted paid leave following the death of a child.

The bill had its first reading on 19 July 2017. Second reading is expected on 20 October 2017.

The bill can be found here

European Union (Withdrawal) Bill The Repeal Bill, under its formal title the European Union (Withdrawal) Bill was published on 13 July 2017. It will repeal the European Communities Act when the UK leaves the EU in 2019. It has been called "one of the most significant pieces of legislation that has ever passed through Parliament". The bill will transfer all regulations into domestic law.

The Bill, or a version of it, once changes are made, will become law once the UK leaves the EU.

All current legislation stemming from the EU will become UK law.

The bill can be found here For more information, please see Out-Law.

National Living Wage (Extension to Young People) Bill A bill to extend NLW to people aged 17-24

The bill had its first reading on 19 July 2017. 2nd reading is scheduled for 6 July 2018.

The bill can be found here

GOVERNMENT INQUIRIES (back)

Taylor review on modern employment practices The Taylor review on modern employment practices has launched with a regional tour. The review is addressing six key themes:

security, pay and rights;

progression and training;

the balance of rights and responsibilities;

representation;

opportunities for under-represented groups; and

new business models. The review is headed up by Matthew Taylor, and the panel includes Diane Nicol, partner in Employment Law at Pinsent Masons.

The review was published on 11 July 2017

The review considered the implications of new forms of work on workers rights and responsibilities, and employer freedoms and obligations.

The report can be found here.

Corporate Governance inquiry The Business, Innovation and Skills committee has launched an inquiry on corporate governance, looking at the following aspects:

executive pay, in particular examining whether executive pay

The inquiry is concluded. The report from the session has been published here

The BIS inquiry follows on from the corporate governance failings highlighted by the committee’s recent inquiries into

Further information can be found here Evidence received can be

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

Employment Law Changes Likely / Actual

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should take account of companies' long term performance, and whether the pay should reflect the value added by executives relative to junior employees;

directors duties, and in particular whether the role of the director and non executive director is clear within company law, and how the interests of shareholders and employees are best balanced; and

the composition of boardrooms, including worker representation on boards and how to increase the number of women in executive positions.

A number of recommendations were made within the report, including:

o companies to align bonuses with broader corporate responsibilities and company objectives, and take steps to ensure that they are genuinely stretching;

o that the Government should legislate that all FTSE 100 companies and businesses publish their workforce data, broken down by ethnicity and pay band;

o a revised Code should have the issue of board diversity as a key priority;

o That the Financial Reporting Council amends the Code to require informative narrative reporting on the fulfilment of s172 Companies Act duties.

BHS and Sports Direct, and in the wake of commitments from the Prime Minister to overhaul corporate governance.

viewed on the publications page here The report from the session can be found here

Review into equality law and gender discrimination The Fawcett Society launched a review into sex discrimination laws. The review is looking at equal pay, protection for part time workers and during pregnancy, and intersectional multiple discrimination, where a person faces potential discrimination for their gender plus another protected characteristic, for example age or race.

Evidence for the final session was requested by 3 July 2017. There is no date for a final report.

To find out more, please see here. The press release is available here

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

Employment Law Changes Likely / Actual

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CONSULTATIONS (back)

Protection from Caste Discrimination A provision in the Enterprise and Regulatory Reform Act 2013 amends the EqA 2010, making it mandatory for the government to outlaw discrimination on the grounds of caste. The government has confirmed that it has no "immediate" plans to introduce secondary legislation making caste discrimination a form of race discrimination, and that a consultation would be required before introducing such legislation. The consultation end date was extended due to the General Election. (Note: case law has already indicated that caste may be covered under the EqA 2010).

The consultation opened on 28 March and closes on 18 September 2017

Employees will be protected from discrimination on the grounds of their caste in the same way as employees are protected from discrimination on the grounds of other characteristics (such as sex, disability or age).

The consultation document can be found here

Consultation on protecting whistleblowers seeking jobs in the NHS The government is consulting on proposed regulations that aim to:

make it clear that discrimination against whistleblowers seeking jobs or posts with certain NHS employers is prohibited;

make it clear that individual applicants have a legal recourse should they feel they have been discriminated against; and

help embed in NHS bodies a culture that supports workers to raise concerns and welcomes new workers who have done so in the past.

In addition, the European Commission is consulting on whistleblower protection, looking at elements that are important for effective whistleblower protection, problems arising at national and EU levels from gaps and weaknesses in current protection and the need for minimum standards of protection.

The consultation closed on 12 May 2017. Feedback is being analysed. The EU consultation closed on 29 May 2017.

The consultation can be found here The EU consultation can be accessed here

Corporate Governance Reform – Green Paper This green paper seeks to 'frame a discussion' on three main points:

shareholder influence on executive pay;

improving the connection between directors and stakeholders; and

extending good governance to large, privately held businesses. The purpose of the consultation is to strengthen business through better

The consultation closed on 17 February 2017. Feedback is being analysed.

The green paper can be accessed here

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

Employment Law Changes Likely / Actual

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corporate governance, and improve public trust and confidence in businesses. The Prime Minister states that the UK is "an established international leader in corporate governance"

Protection from Redundancy in Pregnancy The government is set to revisit the law around redundancy for new and expectant mothers to ensure sufficient protection from discrimination. It is responding to the House of Commons Women and Equalities Committee report on pregnancy and maternity discrimination, and will issue a consultation on specific measures.

There is no commencement date yet for this consultation.

Employers should be aware The government's response to the report can be viewed here For more information, please see Out-Law

Shared Parental Leave for Grandparents The government has indicated that it will extend the SPL regime to include grandparents. The consultation by BEIS is imminent and will review the extension of SPL to grandparents, but not the SPL regime itself. It is expected that a separate review of the regime will be carried out in 2018.

Expected in 2018 No date yet set for consultation.

OTHER CHANGES / PROPOSED CHANGES (back)

New scheme for tax-free childcare The government introducing a new tax-free childcare system. Eligible families will receive 20% of qualifying childcare costs providing support of up to £2,000 a year for each child.. Disabled children under the age of 17 will also be eligible, in line with existing childcare rules, and can receive up to £4,000 a year. .Eligible parents must expect to earn on average at least £120 per week, and cannot earn more than £100,000 per year. Tax free childcare can not be used at the same time as childcare vouchers.

Roll out from 21 April 2017; all eligible parents will be able to access this by the end of 2017.

. For more information: Click here. The press release with additional information is here Childcare choices website is here

BREXIT Although much of UK employment law originates from the EU we are not likely to see the mass unravelling of these provisions. Removing all the worker protections would not only be politically difficult but some regulations derived from EU law such as the Transfer of Undertakings

Notice was served under article 50 on 29 March 2017

Employers should work with HR to:

Identify employees from EU member states working in the UK and assess the

Please contact us for further information. Click here to read more about the Employment Law issues

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

Employment Law Changes Likely / Actual

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provide businesses much- needed certainty around transfers. We may see amendments or changes to the following:

Working Time Regulations (WTR) around holiday pay and the 48 hour average weekly working time limit;

The Agency Workers Regulations (AWR) in relation to core terms and conditions;

Some aspects of TUPE such as the restrictions to changing terms and conditions; and

A repeal of the Human Rights Act in relation to trade union protections and the right to freedom of association

Scotland and Northern have also expressed an intention to remain in the European Union. Scotland may once again call for an independence referendum and Northern Ireland a border poll. In light of this businesses might consider relocating or resourcing. Theresa May set out her 12 point Brexit plan on 17 January, and the protection of workers rights featured, including the protection of rights currently granted by European legislation. Theresa May invoked Article 50 on 29 Mar 2017 to begin the formal process of Brexit.

business impact if, post-Brexit, they are unable to continue to do so

Identify UK employees working in other EU states and assess the business impact if, post-Brexit, they are unable to continue to do so

Assess the extent to which the UK business relies upon using employees from other EU states and how the business could best minimise the impact if they were unable to continue working in the UK

Assess the extent to which the business in other EU states relies upon using employees from the UK and how the business could best minimise the impact if they were unable to continue working in the EU

Work out if any employee policies or groupings (e.g. EU-wide workers' councils) which may need to be reviewed in the light of Brexit.

on Brexit on Outlaw.com View PM's resources hub on Brexit and what to do next The business impact of Brexit – click here to view PM's coverage on Brexit on Outlaw.com

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

Employment Law Changes Likely / Actual

Implementation date Implications Key Links

UK companies’ responsibility to respect human rights and other reporting issues In September 2013, the government published its National Action Plan on Business and Human Rights. This outlined the importance for all UK listed companies to implement the UN Guiding Principles (UNGPs) on Business and Human Rights in order to promote behavioural change. The Companies Act 2006 was amended to require reporting by quoted companies on their human rights performance: “to the extent necessary for an understanding of the development, performance or position of the company’s business."

Reporting requirement already in place for quoted companies. The EU Directive entered into force on 6 December 2014. EU Member States have two years to put this into national legislation.

Issues concerning human rights and compliance are constantly impacting on employers. In light of the various proposed reporting requirements, employers must consider if a review of their respective policies are required in these areas. Brexit is unlikely to have an impact. The UK Government remains committed to protecting human rights. However, employers should also be aware that further developments are on the horizon in terms of legislation.

The Government updated the National Action Plan in May 2016 which can be accessed here An Equalities and Human Rights commission guide can be found here

Public Sector Exit Payments In the summer of 2015 the government consulted on proposals to end six-figure exit payments for public sector workers. In September 2015 the government published its response to the consultation and confirmed its intention to impose a cap of £95,000 on the total aggregate value of the exit payment and with a mechanism for repayment if the leaver returns to public sector employment within 12 months. The government is proceeding with plans to improve consistency in public sector exit payments, following the 2016 consultation. The new framework of restrictions will, in most cases, reduce the size of the exit payment public sector employees can receive. Employees with long service, and those who may have previously been in line for

To be confirmed

The impact of the cap for high earners and the mechanism to claw back exit payments may potentially drive those senior employees who are well paid from the public sector. When looking at workplace planning HR will also need to be thinking about an influx of individuals seeking severance packages and leave before the regulations come into force. The cap may be an incentive for HR to delay making severance payments.

Click here to read the Government's response to the 2015 consultation. Click here to read the response to the 2016 consultation.

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

Employment Law Changes Likely / Actual

Implementation date Implications Key Links

employer-funded early access to pension, are likely to see the biggest change to their exit terms The exact details of each workforce exit payment calculation scheme will only be available once the relevant government departments have prepared and consulted on their proposals.

RECENT DEVELOPMENTS (back)

EQUALITY ACT 2010 Gender Pay Gap Reporting: The final regulations in relation to mandatory gender pay gap reporting have now been published. The regulations confirm that employers with over 250 or more relevant employees will be required to publish details of:

their overall mean and median pay gap;

their mean and median gender bonus gap; the proportion of male and female employees who were paid a bonus;

the proportion of male and female employees in each of their four salary quartiles.

A number of thorny issues identified in the earlier draft have been clarified. Specifically:

The definition of “employees” has been clarified as including anyone in employment under a contract of employment, a contract of apprenticeship or a contract personally to do work. It therefore potentially includes workers and the self-employed;

The definition of “pay” – what’s included and what’s not included. A step-by-step guide to the calculation of “hourly rate of pay” is also included;

The definition of “bonus pay” – what’s included and what’s not included, together with when remuneration in the form of securities and options are to be taken into account;

How the proportion of male and female employees in each salary quartile should be calculated;

How those on leave at the snapshot date should be dealt with;

The final regulations have been published, and are available here. In force from 6 April. Employers will be required to calculate their first gaps and salary quartiles using the pay period within which 5 April 2017 falls. Publication of data must be by 4 April 2018 at the latest.

Employers should now be publishing their gender pay gap information. The publication of an adverse pay or bonus gap is likely to attract press interest and will impact employers' market reputation, recruitment and retention of staff, as well as on employee relations.

The following guides have been published on the Gender Pay Gap: Overview What employers must publish What data you must gather Making your calculations Pinsent Masons held a webinar on Gender pay Gap reporting in January 2017. The webinar can be found here Gender Pay Gap information from companies who have reported can be viewed here.

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

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and

Failure to comply with an obligation imposed by the Regulations constitutes an ‘unlawful act’ under the Equality Act, which empowers the Equality and Human Rights Commission to take enforcement action.

Further detail will be provided in the Guidance to accompany the Regulations but this is not expected until the New Year.

The draft Gender Pay Gap regulations for the public sector have been published under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017. While they largely mirror the private sector regulations, there are two key differences:

the annual ‘snapshot’ date will be 31 March rather than 5 April; and

they are being introduced as part of the existing public sector equality duty, rather than as additional regulations.

First publication date for the public sector is 31 March 2018.

APPRENTICESHIP LEVY The levy is intended to fund three million apprenticeships in England by 2020. The government's stated aim behind the levy is to enable employers to have control over their apprenticeship funding. It is paid through Pay As You Earn, will be set at a rate of 0.5% of an employer’s paybill, and each employer will receive an allowance of £15,000 to offset against their levy payment. This means that the levy will only be paid on any paybill in excess of £3 million. There will also be a connected persons rule, which means that employers who operate multiple payrolls will only be able to claim one allowance. The government anticipates that this will mean that less than 2% of UK employers will actually pay the levy. Employers will receive a 10% top-up to their monthly levy contributions in England and this will be available for them to spend on apprenticeship training through their digital account.

Implemented from 6 April.

The levy has been introduced from 6 April 2017. Clarity is still required on interplay between the levy and other existing levies, such as those in the construction sector. Further information is also required on how it will impact employers across the UK (as all employers will have to pay the levy, but only English training for apprentices can be offset against the levy).

Click here for guidance and to register for a digital account. Find our apprenticeship levy webinar recording here

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

Employment Law Changes Likely / Actual

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As responsibility for apprenticeships is a fully devolved matter, Scotland, Wales and Northern Ireland are putting in place their own arrangements, which will inevitably create additional work for employers with employees in more than one jurisdiction in the UK. In November 2016 the UK government announced the share that the devolved administrations will receive from the levy from 2017/18 - 20/19/20: see the table below.

Population share of levy funding (£m)

2017-18 2018-19 2019-20

Scottish Government 221 230 239

Welsh Government 128 133 138

Northern Ireland Executive

76 79 82

The CITB has announced a temporary transition package for 2017 to mitigate the costs of both levies for companies with a paybill in excess over £3 million.

IMMIGRATION ACT 2016:

The Act introduced the following provisions: A new criminal offence of employing an illegal migrant in circumstances where an employer has a reasonable cause to believe that a person is an illegal worker (previously it was only a criminal offence to “knowingly” employ an illegal worker). The penalty upon conviction on indictment for these offences will be up to five years’ imprisonment (formerly two years for knowingly employing an illegal worker), or an unlimited fine. Previously, enforcement action was very much focused on the civil regime. This change widens the scope for the Home Office to pursue criminal penalties as well as civil. There are concerns that, depending upon how this new offence is interpreted, honest mistakes in the increasingly complex right to work checks may expose employer to criminal liability;

A power for the Secretary of State to introduce an immigration skills charge on certain employers who sponsor skilled workers from outside the EEA. The government has already confirmed its intention to introduce an immigration skills charge of £1,000 per year by April

Immigration Act partly in force from 12 July 2016

The changes effected by the Act make it all the more important for employers to ensure that they have robust systems in place for carrying out right to work checks on recruitment and for monitoring the on-going right of migrants to be employed within the business throughout the employment relationship. The introduction of the immigration skills charge will also undoubtedly drive up the cost of sponsoring and employing migrant workers. It is therefore likely to be a particular

Government response to 2015 consultation: Tackling exploitation in the labour market: government response For further details see the Home Office factsheet here BREXIT: 'Contingency planning' needed by UK businesses reliant on EU workers, experts say

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

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2017 as part of its overhaul of Tier 2 of the Points Based System;

The creation of a new offence of illegal working which will enable the earnings of illegal workers to be seized;

Increased powers for Immigration Officers to enter business premises to search for documents and to seize and retain evidence in relation to an offence; and

The creation of a new post of Director of Labour Market Enforcement. The Director will oversee and co-ordinate the enforcement of worker exploitation legislation by the three main bodies responsible: the Gangmasters Licensing Authority, the Employment Standards Inspectorate and HMRC. Sir David Metcalf has been appointed as Director of Labour Market Enforcement, as of January 2017.

Creation of a new criminal offence of aggravated breach of labour marker legislation.

Requirement for public authorities to ensure that public sector workers in customer-facing roles speak fluent English;

Introduction of a new power to close premises for up to 48 hours where a business employs illegal migrants and implement an illegal working compliance order (which may restrict access to premises) for up to 12 months. This will be of particular concern to employers given the potential impact upon business;

UK Visa's and Immigration (UKVI) are clamping down on administrative errors by companies. UKVI has published an addendum to the Tier 2 & 5 sponsor guidance clarifying the immigration skills charge. The charge will be per Certificate of Sponsorship (CoS) per year of stay (as opposed to just per CoS) as an upfront cost and is expected to come in on 6 April. It is a £1,000 charge so, if someone is sponsored in T2 General for an initial 3 years, the employer will need to pay £3,000 upfront in addition to the CoS fee at the time of sponsorship. The charge is £364 for small or charitable employers. The addendum sets out the exemptions to the charge:

a non-EEA national who was sponsored in Tier 2 before 6 April

S77 (English language) in force from 21 November 2016. S38 (premises closure) in force from 1 December 2016.

issue for businesses which operate in sectors where there are UK skills shortages that have historically been addressed through recruitment from overseas. Brexit – The implications on recruitment of workers from the EU depends on the new trading relationship. If free movement is restricted or removed, it would become more difficult for employers to recruit from the EU and potentially retain employment of existing EU nationals. Employers should also consider what contingency plans they have in place to fill roles and address skills shortages. There is no immediate danger of EU nationals who are already working in the UK being asked to leave in the near future - indeed the balance of political will currently appears to be in favour of giving assurances that they will be permitted to stay following exit. However, this is subject to reciprocal arrangements being agreed. There is no clarity at this point

Addendum to Tier 2 and Tier 5 sponsor guidance

Employment Law – What's on the Horizon?

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and is applying from inside the UK to extend their Tier 2 stay with either the same sponsor or a different sponsor;

a Tier 2 (Intra-company Transfer) Graduate Trainee;

a worker to do a specified PhD level occupation; or

a Tier 4 student visa holder in the UK switching to a Tier 2 (General) visa

about whether EU workers will in future be able to come to work in the UK, and if so, what immigration rules/ restrictions would apply to them. However clients can prepare by identifying what proportion of their workforce are non-UK EU nationals and therefore may be affected. Some non-UK EU employees and their family members may wish to protect their residency in the UK by applying for permanent residence or British citizenship. Immigration of workers from outside the UK is limited by the points based system. Employers should be aware of the possibility and implications of the UK limiting recruitment of EU nationals to the same criteria. New salary thresholds for immigration into UK could particularly impact on industries reliant on non-EU labour such as construction, retail, hotels and leisure.

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

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SMALL BUSINESS ENTERPRISE AND EMPLOYMENT ACT Whistleblowing: The act inserts section 43FA into the Employment Rights Act 1996 which makes provision for the Secretary of State to make regulations requiring a prescribed person to produce an annual report on disclosures of information. These regulations have not yet been made. (The Financial Services whistleblowing regime came into force on 7 September 2016, designed to encourage more employees to come forward if they suspect poor practice. )

In force from 1 April 2017.

The list of prescribed persons is available here

Click here to access the government's response and accompanying draft regulations. The draft legislation is available here

ENTERPRISE ACT 2016 Protecting Apprenticeships: S25 of the Enterprise Act 2016 protects the term ‘apprenticeship’ from misuse by unauthorised training providers. The measure creates an offence for a person, in the course of business, to provide or offer a course or training as an apprenticeship if it is not a statutory apprenticeship.

Protection of apprenticeships came into force on 1 April 2017.

Clearly employers need to be aware of this and ensure their staff do not refer to any training scheme as an "apprenticeship" unless it is a statutory apprenticeship.

The Enterprise Act 2016 is available here

TRADE UNION ACT: Reform of Strike Laws Key aspects of the Trade Union Act for employers are:

Unions will need to gain a 50% turnout figure in any secret ballot before their members can take lawful strike action;

Workers in ‘important public services’ like schools will need to achieve a 40% Yes vote to strike, as well as the 50% turnout threshold;

In a concession to the unions, there will be a review of the possible use of 'e-voting’ in strike ballots, via online and mobile phones, which may include pilot schemes, but without any commitment to introducing this to replace postal ballots. A call for evidence has been commenced by the government, and closes on 10 May 2017;

Employers will get more time to prepare for strikes - two weeks’ notice instead of the current seven days. This will assist

Implemented 1 March 2017. 'Important public services' fully in force from 1 March 2017.

The tightening up of strike laws will no doubt be welcome to employers, particularly in unionised sectors. Brexit may lead to amendments to the Human Rights Act which would impact freedom of association and trade union protections.

More information is available here Guidance on the Important Public Services regulations is available here Electronic balloting review – call for evidence can be found here The Welsh Bill and consultation can be accessed

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

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contingency planning;

Industrial action ballots will expire after 6 months, so in long running disputes, unions will have to re-ballot or abandon their action.

The government published a consultation which closed on 9 September 2015, looking at the removal of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (S 2003/3319), which prevent an employment business from supplying an employer with temporary workers to perform the duties of a striking worker, or any duties of a worker who is covering a striking worker. There has been no update on the outcome of that consultation, and it is not yet clear whether the government will press ahead with proposals to lift the ban on the use of agency workers to cover for striking employees. These changes are significant but the government's original proposals were watered down as a result of opposition in Parliament. In particular, proposals to increase the regulation of leverage campaigns were abandoned. There is a risk that the tighter rules on traditional forms of industrial action will make leverage action even more attractive to trade unions. The Welsh Government has announced plans to repeal sections of the Trade Union Act which affect devolved areas. A Welsh Assembly Bill has been published which seeks to disapply some certain parts of the Act in Wales, and a consultation implemented, which closes on 17 February 2017.

here More on the Trade Union Act can be found on Out-Law.com Codes of Practice on picketing and industrial action ballots and notice to employers have been updated.

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

Employment Law Changes Case Name Implications Date anticipated in court

KEY CASES ON THE HORIZON (back)

Night care is not 'working' for the purpose of calculating national minimum wage

Shannon v Rampersad and another (t/a Clifton House Residential Home)

The Court of Appeal is looking at the decision at ET and EAT that a night worker who lived on site was not working for the purposes of national minimum wage when in his residential accommodation and not actively responding to a call for assistance.

Expected to be 20 March 2018

Trigger point for commencement of collective redundancy consultation

USA v Nolan This point was referred back to the Court of Appeal, but the case is no longer showing on the Court of Appeal Tracker

Are drivers for Uber workers or self employed?

Farrar and Aslam v Uber

In this seminal case, the Employment Tribunal ruled that drivers for Uber are workers. This has huge implications for people engaged in the 'gig economy' and has seen a number of different challenges from firms such as CitySprint and Deliveroo. Uber have appealed the decision.

Appealed to the EAT. The appeal will be heard on 27-28 September 2017.

RECENT SIGNIFICANT CASES (back)

Employment Tribunal Fees are unlawful, says Supreme Court

R (on the application of Unison) v Lord Chancellor

The Supreme Court unanimously allowed the appeal, and determined that fees are unlawful. There is a right of access to justice, stemming from the Magna Carta, and Lord Reed, giving the judgment, stated that "the Fees Order effectively prevents access to justice, and is therefore unlawful". Fees for claims heard in the ET and EAT were introduced in 2013, and have resulted in "a long-term reduction in claims accepted by ET's of the order of 66-70%". The government had already pledged to reimburse all fees if it had been found to be acting unlawfully. According to the BBC, this amounts to approximately £32m.

See more on Out-Law. Judgment delivered 25 July 2017.

What is in the public interest for the purposes of a public disclosure

Chesterton v Nurmohamed

Previous courts have held that disclosure which is relevant to a relatively small group can amount to a public disclosure. The Court of Appeal agreed with the decisions in the ET and EAT, and held that the disclosure relevant to 100 senior managers can amount to a protected disclosure, confirming that the number of people affected is only one of a number of factors to consider.

Judgment delivered 11 July 2017.

Headscarf ruling changes expectations in discrimination cases

Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v

G4S had a neutrality policy, forbidding the wearing of visible signs of political, philosophical or religious belief, and Ms Achbita was dismissed when she insisted on wearing an Islamic headscarf to perform her receptionist role. As the rule applied to all employees,

Judgment delivered in March 2017.

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

G4S Secure Solutions NV (Case C-157/15)

the ECJ ruled that there was no direct discrimination. Although not asked to determine if there could also be indirect discrimination, the ECJ provided some commentary, confirming that such treatment could constitute indirect discrimination. However, indirect discrimination is capable of being objectively justified as a legitimate aim, where the means of achieving the aim were appropriate and necessary. The ECJ determined that G4S's neutrality policy towards its customers was a legitimate aim, provided that that policy is genuinely pursued in a consistent and systematic manner. The Court also held that in theory, such a policy could be considered necessary if it was applied to employees in a client facing role, as there was no other way of achieving the desired aim of neutrality. Whilst this case featured heavily in the news, it is questionable whether it will impact heavily on UK businesses, particularly those in the private sector where there is no principle of direct effect of EU law. There is already a wealth of UK case law on indirect discrimination in the application of dress codes and policies about symbols of religion and belief at work which has set a high standard in terms of what is truly necessary when it comes to dress codes. We do not tend to see neutrality policies in the UK in a similar way to the approach in France and Belgium. . More information on this story can be found on Out-Law.com.

Holiday Pay – Commission

British Gas v Lock The Court of Appeal judgment was given on 7 October 2016. The CoA agreed with the EAT that holiday pay should include commission based payments, and that domestic legislation can be read in a way compatible with the EU Working Time Directive. No guidance was given on how to calculate in other cases - for example in the case of a banker who receives one bonus payment per year - which may inevitably lead to more litigation. With the issue of holiday pay directly driven by European legislation, the question of whether Brexit will alter the position is

Employment Law – What's on the Horizon?

Horizon Watching – last updated 28 July 2017

something we are looking out for. However, that won't impact on cases already lodged. The decision does mean that employers who have been awaiting the Lock decision before actioning a 'fix' in relation to holiday pay are now likely to face further/ renewed challenges from employees. British Gas has been refused permission to appeal to the Supreme Court. Also of key importance is the appeal to the EAT in Bear Scotland, which raises a challenge to the "three-month gap rule" and that case was heard in December 2016.

Please note that employment law differs in Northern Ireland, and it has not yet been confirmed whether many of the changes noted above will apply there. Please see contact Paul.Gillen@pinsentmasons.com for further information if your business has employees in Northern Ireland.