Looking back, looking forwards – a year in the life of WorkLife
Looking back over 2015:
2015 has been a busy and varied year for employment law. Some of the main and/or most interesting developments (depending on your point of view!) include:
- Potential shift in the boundaries of discrimination law – 2015 has seen a flurry of cases potentially widening the scope of discrimination law. To take but two, Thompson –v- London Central Bus Company Ltd (see Claudia Rooney's article) and CHEZ Nazpredelenie Bulgaria (see Michal Chudy's article) suggest that "associative discrimination" may extend to victimisation and indirect discrimination claims. In other words, an individual may be able to bring a claim for (a) victimisation if they believe that their unfair treatment was a result of their association with an individual who made protected acts or (b) indirect discrimination if they have suffered alongside an actual or hypothetical protected group. As ever, the extent to which the net has been widened by these cases will be clarified as and when further cases in this area are decided.
- Tribunal Fees are here to stay (for now) – In August 2015 the Court of Appeal dismissed UNISON's challenge to the introduction of Tribunal fees (see our post here). UNISON has applied for permission to appeal to the Supreme Court. With the announcement that the Scottish Government plans to abolish fees (see our post here) and the ongoing review of the system in England and Wales, this is definitely an area which will see developments in the New Year.
- Holiday Pay – The issue of holiday pay has certainly kept us busy on the blog. In the last year, the issue of commission was clarified in the case of Lock v British Gas, although this case was back in the EAT at the beginning of this month, with a decision expected in the New Year (see our post here). In addition, the EAT also grappled with the issue of holiday and sickness absence (see our post here). Bear Scotland v Fulton returned to the ET in August and it has been reported that the Tribunal decision is being appealed. It is fair to say that 2016 will therefore see more cases on holiday pay.
- Woolworths and collective redundancy consultation - as set out in Alice Cave's and Claudia Rooney's articles the Woolworths litigation has been rumbling on for a while. On 30 April 2015 the ECJ handed down its judgement which clarified that employer's collective redundancy consultation obligations are triggered when at least 20 dismissals occur in each of the employer's establishments and not in the employer's business as a whole. The Court has referred the case back to the Court of Appeal to determine whether the stores in the Woolworths case can be regarded as separate "establishments". Whilst we wait for the Court of Appeal's final decision in the matter, employers considering large scale redundancies across a number of sites can probably safely treat each site separately when determining their obligations.
- Fit for Work? – The government's 'Fit for Work' service is now operational throughout the UK. This service provides occupational health assessments and assists employees to return to work who have been absent for four weeks or more. For more information see ACAS and Government guidance.
- Whistleblowing – The case of Chesterton Global Limited v Nurmohamed considered what was meant by the new 'public interest' test (inserted into the ERA 1996 by the Enterprise and Regulatory Reform Act 2013). The EAT held that it is not necessary to show that a complaint was of interest to the public at large for it to qualify as a protected disclosure under the legislation; as it is inevitable that only a section of the public will be directly affected by any given disclosure. The objective of the whistleblowing legislation is to protect workers from unfair treatment for reasonably raising genuine concerns about wrongdoing in the workplace. The EAT in this case confirmed that the sole purpose of the ERRA 2013 amendment was to reverse the effect of Parkins v Sodexho; so preventing a worker from relying on a breach of his own contract where the breach is personal, and has no wider public interest implications (See the post here). This case is currently being appealed and is due to be heard next October. In addition, the EAT in Underwood v Wincanton ruled that a worker who made a complaint about a breach of his/her terms could be protected by whistleblowing legislation (essentially coming [almost] full circle from Parkins v Sodexho). In other words, it is possible for a complaint about a breach of an employment contract to amount to a qualifying disclosure, even with the new[ish] public interest test. (see Whistleblowing comes full circle).
Looking forwards to 2016:
- Taxation of termination payments – In July 2015 the Government published a Consultation document on the "simplification" of the tax and national insurance treatment of termination payments. As Geoffrey Richards points out in his article, "simplification" in this context is likely to mean a reduction (possibly a significant reduction) in the £30,000 exemption currently applied to termination payments. The response to the consultation is expected in the New Year.
- Regulated roles – The new Senior Managers and Certification regime are due to commence on 7 March 2016 (click here to see our post). In addition, on 6 October 2015, the FCA and PRA published a joint consultation paper setting out proposals in relation to the seeking of and the provision of references for certain regulated roles. The consultation closed on 7 December 2015 and final rules are due to be published in early 2016. The new proposals clarify that all FCA/PRA regulated firms must disclose information relevant to "fitness and propriety" when asked to provide a regulatory reference. The proposals also confirm the ban on entering into agreements which will limit a firm's ability to disclose information in a reference. The proposals then contain a number of additional requirements for banks and/or insurers where a reference request is related to a Specified Role. For further details please click here.
- Zero Hour contracts – further protection for workers –the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 is likely to come into force in 2016. These regulations provide protection for workers on zero hours contracts. They give employees working under such contracts the right not to be unfairly dismissed or subjected to any detriment if the reason, or principal reason, is that the employee has failed to comply with an exclusivity clause (i.e. a clause which prevents the employee from working for anyone else). For further information see Rachel Lewis's article.
- Publication of differences in gender pay – 2016 is likely to see new measures which require private companies, public authorities and voluntary sector organisations that employ 250 or more employees to publish information about the difference in pay between male and female employees. This will include information on bonuses.
- Compulsory national "living wage" - from 1 April 2016 a new compulsory national "living wage" of £7.20 per hour will be introduced for workers aged 25 and over. The current rate of national minimum wage for workers aged 21 and over is £6.70 per hour. This move follows an increase in the maximum financial penalty for employers who fail to pay their workers the national minimum wage to £20,000 per worker. Previously, there was a maximum penalty of £20,000 for a breach irrespective of the number of workers affected.
- Will "caste" become a protected characteristic? - the Enterprise and Regulatory Reform Act 2013 prescribes that the Government must add "caste" to the definition of "race" under the Equality Act 2010. The Act does not prescribe a time limit for the exercise of this power. The Government has indicated that it is reviewing the position following the Employment Appeal Tribunal decision in Chandhok & Anor v Tirkey which found that caste discrimination may in certain cases already be unlawful under the Equality Act 2010. For further information about this decision see Michal Chudy's article.
- Immigration issues, watch this space - The Immigration Bill is currently before parliament and is likely to come into force in 2016. The primary aims of the bill seem to be (a) to reduce net migration; and (b) to crack down on illegal working. Provisions include (1) preventing employers from advertising jobs overseas until they have been advertised in the UK; (2) the creation of a new labour market enforcement agency to take action against employers that exploit migrant workers; (3) an English language requirement for public service workers; (4) the introduction of an immigration skills charge on businesses that use skilled migrant workers from outside the European Economic Area; and (5) notifications to be sent to employers when a migrant worker's visa expires.
- The Trade Union Bill – The Government has expressed an intention to reform the law relating to trade unions – as summarised by Geoffrey Richards here. The Bill has raised a number of concerns from various parties, particularly in relation to the proposals on picketing. In its response to the consultation on tackling the intimidation of non-striking workers, the Government confirmed that it is not pursuing the majority of its proposals in this respect (the statement can be seen here).
- The Enterprise Bill - The key proposals for HR practitioners are the introduction of a £95,000 cap on exit payments made to public sector workers and regulating the use of the word "apprenticeship" to cover only government-accredited schemes and increasing the number of public sector apprenticeships offered (our post can be seen here).
So, 2016 looks set to be a busy year both in the appeal courts and with the introduction of new legislation. On that note it remains for me to wish you all a very happy Christmas and a happy (and dispute-free) New Year.