Welcome to our first employment update for social housing and care homes for 2019. It certainly looks set to be another year in which the legal and political landscape is dominated by Brexit. At the time of writing, the terms of the UK’s exit from the EU remain unclear. Whatever form of Brexit we ultimately take, whilst the employment law landscape is unlikely to change significantly in the short to medium term, employers may be met with workforce/resourcing issues following the introduction of the EU Settled Status Scheme.

Settled Status

Following Brexit, EU citizens and their close family members who wish to remain in the UK will need to make an application under the EU settled status scheme. Pilot schemes have already been implemented and the scheme will be fully open by 30 March 2019. The deadline for applications is 30 June 2021 but, in the event of a “no deal” the timescale will reduce to 31 December 2020. Individuals need to have been living in the UK for 5 years; if not they must apply instead for pre-settled status which can be switched to settled status once they reach the 5 year residence requirement. The original fee proposal for the application has now been abolished.

In the event of a “no deal”, then the Government has announced that EU citizens will be able to enter the UK to visit, work or study after 29 March 2019. For stays longer than 3 months, European Temporary Leave to Remain will be required. However, this only applies to EU citizens coming to the UK after EU exit in the event of a no deal so should not apply to existing workforce as they should be living in the UK already.

What does this mean for you and your EU workforce? You may wish to consider what information and support you can provide to your EU staff throughout the settled status process as our informal feedback from clients is that EU staff are treating the deadline for applications (i.e. 30 December 2020 for “no deal” or 30 June 2021 for “deal”) as the natural point to leave the UK. This could potentially lead to serious resourcing issues. Capsticks is providing a Brexit/settled status briefing session to organisations of 1 to 1.5 hours to be provided at the employer organisation. The cost for a session is £250 plus VAT or, if we run more than one session, it reduces to £200 plus VAT.

Casual Workers

The Good Work Plan, published in December 2018, is the Government’s response to the 2017 Taylor Review which set out recommendations to improve rights for workers, especially those seen as vulnerable.

From April 2019, all workers will have the right to be given a written, itemised pay statement at the time or before their wage or salary is paid.

Other proposals include granting a right to all workers to written terms and conditions (currently the right extends only to employees) and the right to right to request a more stable and predictable contract after 26 weeks. The Good Work Plan also promises improvements in the area of enforcement, such as the naming and shaming of employers who fail to pay employment tribunal awards, and increased penalties for “aggravated breaches” of employment rights.

Also in the field of atypical workers, we have the so called “gig economy” cases: in the widely reported Uber case, the Court of Appeal held in December that Uber drivers should be classed as workers. Uber’s appeal to the Supreme Court will be held later this year. Businesses will be keen to get clarity after the Supreme Court’s decision last year in Pimlico Plumbers which considered a similar point but only gave the (rather typical) legal position of “it depends”.

Whilst Uber and similar cases are generally reported as concerning the gig economy, the issue of worker status is key for all employers, particularly those who use fragmented workforce models, e.g. agency workers or outsourcing. As such the outcome of the Uber litigation will be eagerly awaited by employers in the social housing and care homes sector. In the meantime, Capsticks can review your current contractual documentation with workers, employees and agencies to ensure your legal risk is minimised.

Sleep-ins

Another Supreme Court decision that will be of particular interest to social housing and care homes providers is the case of Mencap v Tomlinson-Blake. In 2018, the Court of Appeal ruled that workers on sleep-in shifts (i.e. where they are required to remain on site and be on call to provide assistance where necessary) are not entitled to the national minimum wage for the duration of their shift, but only for time that they are required to be awake for the purpose if carrying out a specific duty. Unsurprisingly, this decision has been strongly criticised by the unions, and Unison has brought the appeal to the Supreme Court.

Other Cases to Watch

October 2019 will see the next significant development in the long line of holiday pay cases as the Court of Appeal will hear the employer’s appeal in Flowers v East of England Ambulance Trust. Flowers considers the question of whether voluntary overtime should be included in holiday pay and, in particular, when overtime is worked with sufficient regularity to be deemed ‘normal remuneration’ for the purposes of holiday pay.

Also of interest will be the appeals in the cases of Capita Customer Management Ltd v Ali and Hextall v Chief Constable of Leicestershire Police. In these cases, the Employment Appeal Tribunal (EAT) came to different conclusions as to whether it is discriminatory to offer enhanced maternity pay but only statutory shared parental pay. It is to be hoped that the Court of Appeal will provide some clarity on this question.