Employment law milestones to remember in 2018

ArwenMakin_ESPLaw
Senior solicitor
ESP Law
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Last year was certainly a busy one for HR professionals and now 2018 looks set to be no different. The removal of Employment Tribunal fees from July 2017 onwards, for instance, has already resulted in a marked increase in the number of claims, meaning savvy HR teams have had to begin factoring the greater ease for individuals to bring claims into their risk assessments. This year, we can expect the Tribunal systems to be heavily burdened with this increased volume, not to mention the administration associated with returning fees to the 60,000 or so claimants who have lodged claims over the last three years.

But what other legacies has 2017 left for the HR world? Here are five other developments that should be remembered...

Data Protection

May 2018 brings the advent of GDPR – a new EU law which heralds fundamental changes in the way we manage and process data.

In September 2017, the UK government published the Data Protection Bill, setting out proposals for how GDPR will be honoured in UK legislation in preparation for Brexit. At the time of writing, this Bill is at committee stage therefore all employers will need to keep abreast of developments in this area to ensure that they understand necessary changes to contracts of employment, practices and management of employee data throughout the employment lifecycle.

Employment Status

2017 has seen increased focus on the “gig economy”, both in terms of the publication of the Taylor Review and more cases looking at the issue of worker status. The growth of on-demand services has led to a marked increase in businesses trying to engage flexible workforces to meet fluctuating requirements in a cost-effective manner, but individuals are increasingly challenging the current approach, seeking categorisation as workers with the attendant rights to sick pay, holiday pay and the national minimum wage.

We await further developments on the heavily fact-sensitive test for worker status with appeals from Pimlico Plumbers and Uber amongst others, and the outcome of the Commons select committee enquiry.

A week’s pay

This year also marked the end of the long-held convention that the calculation of a week’s remuneration for the purposes of holiday pay, a basic award, statutory redundancy payments and protective awards under TUPE and TULRCA, did not include employer pension contributions.

In University of Sunderland v Drossou EAT/0341/16, it was held that the understanding that s221 Employment Rights Act 1996 only concerned payments that were actually received by the employee, was actually incorrect. This judgment will therefore increase costs for employers when calculating these payments and should be taken into account in 2018 budgets.

Holiday Pay

The gift that keeps on giving, further case law in 2017 has confirmed that voluntary overtime should be included when calculating holiday pay if it forms part of a worker’s “normal remuneration”. This has had a significant impact on overall costs for many employers but not least those engaging employees and workers via zero-hours contracts. Businesses will need to factor in these additional costs going forwards and consider whether there remains contingent liability for claims from existing workers.

Recruitment

Finally, Brexit has caused confusion in some UK businesses in 2017 about the employment of EU nationals post-March 2019. We currently don’t know what deal will be reached in relation to these individuals working and residing in the UK after we have left the EU, but we do know that there are currently no changes to the Equality Act 2010. This means that, at least for the time being, it will constitute unlawful discrimination to reject or refuse applications from non-British EU nationals on the basis of their nationality alone. Employers are understandably uncertain about what the UK government has in mind but, at present, it is therefore wise to understand the level of reliance a business has on EU labour and to await further developments before deciding on a different option. 

About ArwenMakin_ESPLaw

Arwen Makin

After studying law at Cambridge University, I trained at leading national law firm Mills & Reeve, qualifying into their employment team in 2002. I have extensive employment law experience, gained through advising both employers and employees on a wide range of issues, across an array of sectors – including but not limited to finance, education, hospitality, transport and retail. This diverse experience means I am ideally placed to provide advice in relation to professional conduct and regulatory matters.

I am now a senior solicitor at ESP Law, part of ESP Group – a very different employment law firm and HR consultancy business, with our own in-house legal and HR experts. Taking pride in our reputation for delivering sensible, straight-talking and practical advice – at the same time as being approachable and supportive – I am passionate about the way ESP works with its customers. By building on trusted relationships and providing prompt support at the earliest stage of any issue, we help ensure that sound commercial decisions are taken.

The vision for our business was to deliver an exceptionally personal, yet cost-effective service that truly meets the evolving needs of modern and forward-thinking HR teams and their organisations. I’m lucky to be among a team of very talented employment lawyers who work hard day in, day out, to make this vision a reality.

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