Hot Topics for 2019
1. The Good Work Plan
On 17 December 2018, the government published the Good Work Plan, setting out what it described as “the biggest package of workplace reforms for over 20 years”.
The plan outlines an intention to improve working conditions for agency workers, zero-hour workers and other atypical workers. There has been continued debate over the rights or wrongs of these types of workforce, but many businesses within the tourism, healthcare; retail and food industries in particular, rely on these types of workers for a more flexible workforce; while on the flip side, many employees in these industries struggle with poor job security and uncertain incomes.
Unfortunately, many of the measures do not yet have specific timescales and the measures for which legislation has already been published, are mostly due to come into force in April 2020.
Nevertheless, the measures include a right for workers to request a more stable and predictable contract, an increase in the period required to break continuity of employment from one week to four, a ban on deductions from staff tips and a commitment to improve the clarity of the employment status tests.
The employment status of staff is extremely important to both businesses and the individual and impacts on (among many other things) eligibility for auto-enrolment; sick pay; maternity leave and redundancy pay.
2. Itemised payslips
The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018 is due to come into force on 6 April 2019. The legislation introduces a right for all workers to be provided with an itemised pay statement.
Further, the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 (SI 2018/147) is set to come into force on the same day and will require itemised payslips to contain the number of hours paid for where a worker is paid hourly.
Again, this is a very important development for the large number of workers who are paid by the hour who will be entitled to receive a full breakdown of their payslip, so they will know exactly what time they are being paid for.
3. New statutory code of practice on sexual harassment
In its response to the Women and Equalities Select Committee’s report on sexual harassment in the workplace, published on 18 December 2018, and in the context of the ‘Me Too’ movement, the government announced 12 broad action points.
These include asking the Equality and Human Rights Commission to develop a statutory code of practice on sexual harassment. It is suggested that observing this code will help employers demonstrate that they have taken reasonable steps to prevent sexual harassment taking place.
The government will also be consulting on a mandatory duty to protect workers from sexual harassment; how best to tackle third-party harassment; protection of interns and volunteers; the possible extension of time limits; and the better regulation of non-disclosure agreements.
4. Reintroduction of employment tribunal fees
Regular readers may recall the debacle following the introduction of Tribunal fees, and the (still ongoing) process of refunding the fees that were paid.
The matter has reared its head again, and although no time-frame has been suggested, the Ministry of Justice has noted that the Supreme Court judgement in R (on the application of Unison) v Lord Chancellor which removed the fees, does in fact leave open the possibility of a new court fee scheme which would (we can only hope) strike a balance between increasing employment tribunal funding and safeguarding the delivery and access to justice.
We will have to wait and see what decision is made but check out our website for the latest news.
5. Tips and service charges
On 1 October 2018, the government announced plans for new legislation to prevent employers from keeping tips and service charges intended for workers.
This is of huge importance in locations where tourism, hotels, and restaurants are of vital importance to the economy. Further, for many of us, our first taste of employment involved the race for tips, and many continue to rely on the tips to boost the often-modest hourly rate or normal take home pay those employees receive.
No specific timescale has been given, but the government has said that the changes will be introduced at “the earliest opportunity”, and these plans were reiterated in the government’s Good Work Plan published in December 2018 mentioned above.
6. Key cases
For those of you interested in the more technical side of the law, there are various cases due to be heard this year in the senior courts which could have a profound impact on the law and how it is applied.
On 21 and 22 January 2019, the Supreme Court will hear the appeal in Tillman v Egon Zehnder Ltd, in which the Court of Appeal decided that a six-month non-compete restrictive covenant to be invalid. The restriction, which sought to prevent a former employee from being concerned or interested in any competing business, was deemed unreasonably wide (and therefore unenforceable) because the phrase “interested in” included holding one share in a publicly quoted company.
This may seem a minor point, but it is important because having a single share in a public company will rarely involve any control or management in the organisation, which is exactly what the restrictions are trying to limit; in comparison to owning shares in a private start-up business for example. This will be the first case involving construction of an employment restrictive covenant to be decided by the Supreme Court (or the House of Lords as it used to be known) in over a century.
Most business owners will appreciate the need to protect their interests and use of such restrictions is very common. However, they are interpreted vary narrowly by the courts and should specifically drafted for each occasion.
The case of Chief Constable of Norfolk v Coffey, will be heard by the Court of Appeal in February, and is the first case to directly address the issue of direct discrimination based on perceived disability under the Equality Act 2010. Miranda Amos commented on the case last year and you can read the details here: HERE
Finally, in April, the Court of Appeal will hear the appeal in Kocur v Angard Staffing Solutions Ltd, in which it will consider the interpretation of regulation 5(1) of the Agency Workers Regulations 2010 which gives agency workers “the same basic working and employment conditions” as permanent employees after 12 weeks. This may be particularly relevant to the health and social care services on the Island.