What to expect in employment law in 202016/01/20
2020 is shaping up to be another busy year in the field of employment law. At the time of writing, the UK’s exit from the EU on 31 January is looming, although the terms of such exit remain unclear. Whilst Brexit will not have an immediate impact on UK employment law, the immediate effect will be seen in the field of immigration, with EU nationals needing to apply for settled status under the EU Settlement Scheme by June 2021 (or by the end of this year if there is a “no deal” Brexit), and other changes to the immigration system.
In the NHS, the employment and HR landscape is likely to be dominated by the NHS People Plan, final details of which are expected to be published early this year. Employers across the NHS will also be awaiting with interest a number of rulings from the courts and tribunals. Of particular interest will be the Supreme Court’s decision, expected imminently, as to whether it will hear an appeal in the case of East of England Ambulance Trust v Flowers on the calculation of holiday pay, both statutory and under Agenda for Change. NHS employers are similarly awaiting a decision on whether the Supreme Court will hear the Trust’s appeal in Hallett v Derbyshire Hospitals NHSFT regarding junior doctor rest breaks.
Social care and social housing providers will be awaiting with interest the decision in Royal Mencap Society v Tomlinson-Blake, considering whether workers on a “sleep-in” are engaged in time work and therefore entitled to the national minimum wage for the duration of their shift. This case will be heard by the Supreme Court in February. Other key cases to watch out for in 2020 include the latest in the Uber litigation on worker status, which will be heard by the Supreme Court in July, and the decision in the data breach and vicarious liability case of Various v WM Morrisons Supermarket. This case, which ruled that Morrisons was liable for a leak by one of its employees of personal data of around 5000 staff, was heard by the Supreme Court in November and judgment is awaited.
Legislative changes expected in April include:
- Annual increases in rates of statutory benefit payments
- The introduction of two weeks’ paid statutory bereavement leave (subject to secondary legislation);
- The extension of the intermediaries legislation (commonly known as IR35) to medium and large companies (following the changes introduced for the public sector in April 2017). This is subject to the draft Finance Bill being passed;
- A requirement to pay class 1 NICs on severance payments over £30,000 (currently such payments attract income tax only);
- The right to a written statement of terms for all workers (not just employees) on or before the first date of employment, and the need to include additional information in such statements;
- The extension of the reference period for calculating holiday pay (where hours are irregular or pay varies) from 12 to 52 weeks; and
- The end of the Swedish derogation under the Agency Workers Regulations, meaning that all agency workers will be entitled to the same terms and conditions as comparable permanent staff after 12 weeks, even where the agency workers receive pay between assignments.
These last three measures will be introduced as part of the Government’s Good Work Plan, which was published in December 2018.
The reelection of the Conservative government at the end of 2019 with a large majority, means that we are also likely to see more employment law changes, as we move away from the political stalemate of recent months. December’s Queen’s Speech announced a new Employment Bill, under which it is anticipated that, subject to consultation, flexible working will be made the default position for employers. The Bill is also expected to enshrine certain employment rights into UK law that were previously protected by EU legislation and which are unlikely to be included under the terms of any Brexit withdrawal agreement, and to extend redundancy protection to prevent pregnancy and maternity discrimination. Looking further ahead, other expected changes include a week’s statutory leave for unpaid carers, a right for all workers to request a more predictable and stable contract after 26 weeks (under the Good Work Plan), new measures to address sexual harassment in the workplace (following the 2019 consultation) and new requirements to prevent the misuse of confidentiality clauses and non-disclosure agreements.
For further information on how these changes might affect your organisation, please contact Sarah Parkinson, Chloe Edwards or Andrew Uttley.