Employment law is a rapidly changing area and it can sometimes be a challenge to keep on top of what's happening. With that in mind, New Quay HR looks ahead to some of the expected developments in Employment law in 2019 and how they may affect your employed staff.
As the government is transposing all applicable European law into the domestic law within the UK, it is unlikely that we will see any practical legislative change to Employment law arising out of the Brexit process in 2019. Longer term, it seems likely that new EU caselaw will remain influential in the British Courts although the interpretation of particular laws may diverge over time.
Pay Gap Reporting
Gender pay gap reporting came into force in 2017 and applies to employers with 250 employees or more. The Government has recently rejected call from BEIS to reduce the reporting threshold to employers with 50 or more employees but this may be the future direction of travel.
The government is also consulting on introducing a further pay reporting scheme for ethnicity. Although unlikely to come into force in 2019 and whilst it may only apply to those who employee 250 or more, it is likely to generate discussion this year and shine a spotlight on ethnicity pay issues.
Whilst the majority of Chambers may never be in the position of mandatory reporting due to their size, it may nevertheless be a good time to put the issue of gender and ethnicity pay and broader diversity measures on the agenda for proactive consideration within Chambers.
The Good Work Plan
The government's Good Work Plan proposes eight key changes to Employment law:
1.A new employment status test for self-employed workers.
2.A right for workers to request a fixed working pattern.
3.Chambers will be required to provide employees and workers with a written statement of terms and conditions on the first day of work (rather than within two months).
4.The break in continuity of employment will be increased from one week currently to four weeks. This will make it easier for temporary workers to accrue the two-year qualifying service to engage unfair dismissal rights.
5.For calculating a week's pay, the reference period for variable pay will increase from 12 weeks to 52 weeks. This means that holiday pay calculations should be less affected by short term variations in pay.
6.Agency workers will have a simplified right to equal pay as their permanent counterpart.
7.The threshold for employees to set up information and consultation arrangements will be lowered to 2% of employees, subject to the existing minimum of 15 employees.
8.A ban on employers making deductions from staff tips.
We are continuing to see the impact of the #MeToo movement in the workplace. Outside of the legal sector, many businesses are also now revealing how many senior employees have been dismissed for inappropriate conduct, most recently the big accountancy firms. With employees feeling more supported by society to raise concerns, the spotlight on sexual harassment in the workplace is unlikely to die down anytime soon.
Into this mix, the government has expedited a review into the use of non-disclosure agreements in the workplace due to the concern that harassment and bullying has been covered up by so-called 'gagging clauses'. We wait to see whether the government will propose any legislative changes. The government will also be consulting this year on a mandatory duty to protect workers from sexual harassment; how best to tackle third-party harassment and the protection of interns and volunteers.
We anticipate that the Equality and Human Rights Commission may publish a code of practice on sexual harassment in workplace this year.
Employment Tribunal and Fees
In November 2018, the Ministry of Justice stated that it was considering the reintroduction of Employment Tribunal fees, insisting that a scheme could be found which is both progressive and proportionate. There are no firm plans at the moment, however, it remains to be seen how any new fee system would be structured to overcome the stinging criticisms of the old scheme in 2017 by the Supreme Court when fees were determined to be unlawful.
It's looking like 2019 is going to be very interesting for Employment law, with the largest legislative changes we have likely seen since the introduction of the Equality Act 2010.