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5-01-2016

Employment law rarely stands still and although it seems likely that there will be fewer legislative changes than in 2015, here are some things to look out for in the coming year:

  1. A decision in the appeal of Lock v British Gas (holiday pay calculations) is due imminently.
     
  2. The government will publish its first responses to the simplification of the tax regime in relation to settlement payments. It has been suggested that the £30k tax free allowance will be done away with and that the tax free allowance will be incremental to length of service, possibly in line with statutory redundancy payments. If changes are implemented, then it is likely to make settlement agreements more expensive/difficult for employers. The £30k tax free limit has been held at the same level for many years, but is undoubtedly of assistance in trying to exit employees without having to go through the formalities of performance management or disciplinary hearings.
     
  3. Consultation will begin in relation to Grandparental leave. The idea is to extend shared parental leave to working grandparents. The proposals are seen by many as a step too far.
     
  4. Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 come into force on 11 January. Zero hours employees will have the right not to be unfairly dismissed (regardless of length of service) and zero hours employees and workers the right to not be subjected to a detriment for failing to comply with an exclusivity clause.
     
  5. Two cases on employment status, Windle v Arada and another and Pimlico Plumbers Ltd v Smith, are likely to go before the Court of Appeal.
     
  6. R (on behalf of the Insolvency Service) v Forsey: It has been reported that magistrates will hear a case against the former Chief Executive of failed fashion chain USC in relation to the breach of the obligations to notify the secretary of state where there is to be collective redundancies. Under section 193(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) it is a criminal offence to fail to notify the secretary of state at least 30 days before the first dismissal, where 20 or more redundancy dismissals take place. Prosecutions for breach of TULRCA were unheard of until the failed attempt to prosecute the directors of City Link [see here]. While Unions seem to be very much in favour of these types of prosecutions, the cases have caused alarm. The problem with TULCRA is that it is backwards looking. It takes a date (the first dismissal) and then looks backwards at what was done and the decision making process. Obviously those who make the relevant decisions do not have the benefit of hindsight and they may make decisions which, while incorrect, are done in the genuine belief that they are going to save the business. There is a fear that the willingness to take criminal proceedings against directors will lead to a more conservative approach and more businesses failing.
     
  7. Again on the issue of collective consultation and redundancy, the “Woolworths case” will return to the Court of Appeal following the Court of Justice of the European Union (CJEU) decision which confirmed that “where an undertaking comprises several entities, it is the entity to which the workers made redundant are assigned to carry out their duties that constitutes the ‘establishment’”. The Court of Appeal has to decide whether each branch of Woolworths and Ethel Austin was factually a separate establishment. It seems likely that it will. If so then in many cases the collective consultation requirements will not have been triggered. The case illustrates the difficulties in this area of the law.
     
  8. On 1 April 2016, National Living Wage is to be introduced - not to be confused with the ‘living wage’. The national living wage will be £7.20 for adults aged over 25 years old. While any pay increase for the low waged is to be encouraged, critics have pointed out that it remains below the ‘living wage’ and that there is no logical reason why it should only apply to those over 25 years old.
     
  9. 3/6 April 2016 Statutory Maternity, Paternity, Adoption and Sick pay are all to remain frozen at current rates.
     
  10. Caste is to be added to the definition of ‘race’ under the Equality Act 2010. In September, 2015 a woman successfully claimed that caste discrimination was an aspect of race and recovered compensation for the (frankly appalling) way that she was treated by her employers. The government had resisted specifically outlawing caste discrimination on the basis that there was no evidence of it taking place. That is despite the fact that there had been earlier cases prior to this one alleging discrimination on a caste basis.
  11. September 2016 relevant firms will have to appoint a senior manager or director as their whistleblowers' champion, establish internal whistleblowing channels and inform staff about these arrangements and the legal protections offered by the Public Interest Disclosure Act 1998.
     
  12. Chesterton Global Ltd and Anor v Nurmohamed is scheduled to come before the Court of Appeal – this case concerns what is ‘public interest’ in the context of whistleblowing, i.e. does the disclosure have to be of interest to the public as a whole or just a section of it?
     
  13. It is likely that Unison will have another crack at challenging employment tribunal fees.
     
  14. New continuing professional development rules apply to solicitors(!) Gone is the requirement to do 16 hours of CPD per year, gone is the list of qualifying training activities. Now solicitors can self certify they have a system in place to ensure continuing competence. Should the SRA investigate a solicitor, the solicitor will be required to demonstrate ways in which continuing competence has been achieved.

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained.

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