Employment law: What we learnt in 2017
As we all prepare for the year ahead it's a good time to reflect on what we learnt in 2017
Tribunal fees abolished
What better place to start than with the Supreme Court’s decision in August 2017 that employment tribunal fees were unlawful and should be abolished with immediate effect. Since the fees were introduced in 2013 there had been a 70% drop in the number of claims. HR teams should prepare for a reverse in that trend with the reversal of fees.
The refund scheme is now open for applications from anyone who has paid a fee (and that includes employers that, for example, may have paid judicial mediation fees or were ordered to pay a claimant’s fees).
Uber and the gig economy
Uber was rarely far from the headlines in 2017; losing its private hire licence in London and concealing a major data breach. For those involved in HR it will be the company’s legal battle in relation to the status of its drivers that might be of particular interest. Uber is just one of the many 'employers' that's found individuals it engaged under contracts designed to create a self-employment relationship were in fact workers and therefore entitled to certain basic employment rights.
Employment status is likely to stay high on the agenda this year with the Supreme Court hearing Pimlico Plumbers’ appeal against the decision that its plumbers were workers and not self-employed.
2017 was also the year we learnt that regular voluntary overtime should be included in holiday pay calculations, in certain circumstances (see Dudley Metropolitan Borough Council v. Willets).
We also learnt (King v. Sash Window Workshop) that workers who have been unable to take annual leave may be entitled to carry over that leave indefinitely (and be paid in lieu of that on termination). An important factor in this case was that the 'employer' had denied King the right to paid holidays as he was considered to be self-employed. As a result of this decision we may see challenges being brought against the two-year cap on unlawful deductions claims and the three-month gap breaking the series of deductions rules. HR teams should watch this space.
The courts and tribunals hand down decisions each year in relation to discrimination law, and of particular interest last year was the increase in the bands used to calculate compensation for injury to feelings awards. In 2018 employers should ensure that they are aware of their obligations under the Equality Act 2010, that they have an effective and up-to-date equal opportunities policy, and that staff receive equality and diversity training. HR professionals will be pivotal to that.
Gender pay gap reporting
The gender pay gap reporting regulations came into force in 2017. Employers in the private and voluntary sector with a headcount of 250 or more must publish their first report before 4 April 2018, based on data to 5 April 2017.
Big names have already published their reports, with Shell’s showing that its female employees earn on average 22% less than its male employees. Employers who have not already published their reports should be preparing now, and considering ways to mitigate any reputational damage that may result from their disclosure.
GDPR is one of the real buzzwords in HR, and it is hardly surprising with substantial fines for employers who get it wrong.
The regulations will come into force in May 2018 and apply to organisations of all sizes. Employers should carry out audits of the personal data that they collect and process to ensure GDPR compliance. HR teams should be reviewing employment contracts and policies, privacy notices should be updated (or drafted), and employers may have to appoint a data protection officer.
Overall it was a busy 2017 for those involved in HR and employment law, and employers could be forgiven (although not by the courts and tribunals) for struggling to keep up. It doesn’t look like 2018 will be any quieter. Eating more healthily or taking up a new hobby are perfectly good New Year’s resolutions, but for employers and HR professionals the resolution should be to keep up-to-date, review current practices and contracts, and ensure compliance.
Jamie Meechan is an employment solicitor at MacRoberts Law Firm