Insights 29.1.19

What’s on the agenda for employers in 2019?

Insights 29.01.2019

What’s on the agenda for employers in 2019?

As we are a month into 2019, there has been some noteworthy decisions and proposals in 2018 impacting the employment landscape in 2019 and beyond. This article seeks to address some of the key changes for employers to be aware of.

Changes on the horizon

Good Work Plan

The Government introduced the Good Work Plan publication in December 2018, which sets out proposals anticipated to come into force by 2020.  The key proposals include:

  • Aligning employment status tests and tax status frameworks to provide greater clarity to businesses and individuals. The current frameworks are separate which is argued to add to the confusion for individuals and employers
  • Employees and workers to receive a written statement of terms and conditions from the first day of employment.
  • An increase to the reference period for the calculation of average weeks’ pay for holiday for calculations, from 12 weeks to 52 weeks
  • A right for workers to request a more fixed working pattern after 26 weeks of service.
  • Continuity of employment where a gap of up to four weeks between contracts will not break continuity of employment
  • A repeal of Swedish derogation system which currently allows agency workers to be paid less that permanent employees in certain circumstances

Parental Bereavement Leave

The Parental Bereavement (Leave and Pay) Act 2018, is expected to come into force in 2020.  The Act will give employed parents (meeting the eligibility criteria) who lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy, the right to two weeks’ leave and statutory bereavement pay.  The process to be followed and rates of pay are to be determined by the regulations in due course.

Executive Pay Reporting

The new legislation that came into force on 1st January 2019 and much like Gender Pay Gap reporting will require all UK listed companies with more than 250 employees to report on pay.  In this case, the requirement is to publish the ratio of their CEO’s total remuneration against defined medians of their full-time equivalent UK employees.  The first actual reporting required under the new regulations will be in 2020 – enough time to task the brains in the office. 

Considerations for employers: The theme running through these priorities are enhancements to the current proposition available to employees and workers alike.  The Gig Economy remains firmly on the agenda, the proposals indicate that the parameters and controls to monitor worker verses self-employed status will continue to develop and reduce the uncertainty that continues to unfold.  

Employment Status

In addition to the Government’s proposals around employment status, the infamous Uber case continues (Aslam and others v Uber BV) as the case has been granted permission to appeal to the Supreme Court (the UK’s highest court).   The current position from the Court of Appeal, is that Uber drivers are workers when they are logged in for work.  This year also saw the Supreme Court confirm that worker status applies in the Pimlico Plumbers case, endorsing the previous decisions of the Courts and Tribunal.  The Supreme Court recognised that there were a variety of controls on Mr Smith from Pimlico Plumbers, including being under contract to wear a uniform, using van leased from Pimlico with a GPS tracker and carrying an identity card. 

Both cases have significant implications and lead the way to real practical guidance for employers to move forward with talent and resources strategies. 

However, the High Court has upheld the Central Arbitration Committee (CAC) decision that Deliveroo drivers are not workers covered by the collective bargaining legislation.  The CAC originally concluded that because riders were able to pass on a job to a substitute and where not required to commit to a job, they could not be classified as workers with the right to collective bargaining.   

Considerations for employers: Although there appears to be a steady move towards greater protection for worker status, there are still clear factors that eliminate contractors and other self- employed individuals from a worker arrangement.  Where the right to substitution applies and there is limited control on an individual, it is likely that such conditions will not render an employment relationship, nor the statutory privileges afforded to workers and employees.

 Disability Discrimination

There have been interesting developments in matters relating to potential disability discrimination claims.  In the case of Williams v Trustees of Swansea University Pension and Assurance Scheme, The Supreme Court concluded that Mr William’s ill health early retirement pension had been calculated fairly. Mr Williams had claimed unfavourable treatment due to his leaving pension being based on his part-time salary.  The conclusion reached was that the reduced hours were part of the reasonable adjustments made for Mr Williams and had he been able to work full time, he would have not met the early ill health retirement criteria to receive a pension at that time.

Considerations for employers: Although this case was specific to pension arrangements, it does provide assurances that employers managing disability in the workplace fairly through well considered reasonable adjustments will likely be in a position of legal compliance.  Furthermore, it is important to keep up to date on employees’ health conditions (regardless of the condition currently being defined as a disability or not) so that appropriate working arrangements are in place. 

Unfair Dismissal

In the case of Talon Engineering Ltd v Smith, the Employment law tribunal (EAT) upheld the Tribunal’s decision of unfair dismissal.  The facts in this case were that the employer failed to meet the requirements of the right to be accompanied at a disciplinary hearing.  Mrs Smith was not allowed to postpone the meeting date by two weeks to be accompanied by her Union representative.  The EAT considered the right accompanied under 10 of the Employment Relations Act 1999 (which says that the employer must postpone a hearing to allow the employee’s chosen companion to attend, if within five working days), as an obligation to act reasonably and with a degree of flexibility.  

Considerations for employers: The right to be accompanied at formal meetings/hearings is in itself not breaking news, however, the case does serve as a warning for employers to take reasonable and proportionate measures in disciplinary hearings and other matters where the right to representation applies.  Clear and robust disciplinary procedures are an excellent way to instil good practice and eliminate any future risk.

Brexit – The EU Settlement Scheme

From a HR perspective one of the key priorities is the right to remain in the UK.  The EU Settlement Scheme has been confirmed by the Government to open by 30th March 2019. 

In brief, the scheme offers two application routes – settled status and pre-settled status.  Applicants who have been living in the UK continuously for five years or more, may be eligible to apply for settled status.  Successful applicants will be able to stay in the UK indefinitely.  Applicants who have been living in the UK for less than five years can apply for pre-settled status, with successful applicants being granted limited leave to remain in the UK for up to five years. After this period, such applicants will be eligible to apply for settled status. 

There are of course various eligibility criteria to meet, including the arrival date in the UK.  As it stands, applicants must have arrived in the UK before 31st December 2020 to apply.   In the event of a no deal scenario, the Government have advised it will continue to run the scheme, however, applicants will need to be a resident in the UK by an earlier date of 29th March 2019. 

Considerations for employers: The new scheme does offer some relief to employers, as previously the status of EU workers after 29th March deadline was unclear.  However, given the ongoing developments and negotiations taking place, a period of uncertainty continues for employers.

What next

CBW has vast experience and can offer advice and solutions on any HR matter. To learn more about how we can support you, please contact one of our HR consultants.