Brexit may mean a degree of uncertainty in employment law, but what is the direction of travel in 2018? Beverley Sunderland considers the key issues likely to arise.
Employment law in 2018
Undoubtedly, any predictions for 2018 must lead with the continuing uncertainty of Brexit and its impact on employment rights and the continuing influence of the European Court of Justice.
What can be said with reasonable certainty is that as the UK will not be exiting the EU until 2019, there are unlikely to be any attempts by the Government to fundamentally “undo” rights that have derived from the EU before then.
However, there are other matters on the horizon for 2018 which HR practitioners need to be aware of.
Implementing the Taylor review
In July 2017, Matthew Taylor published his much-anticipated review of modernising working practices.
While reactions were mixed (some unions described the report as “wishy-washy and full of fluff”), it made a number of recommendations.
The Work and Pensions and BEIS committees published their report, ‘A framework for modern employment’ in November 2017 encouraging the Government to build on and enact many of the Taylor Review recommendations, and have produced draft legislation.
The proposed areas for change are:
- Legislative changes to make it easier to identify employment status.
- An automatic assumption of worker status, leaving it to the employer to prove they are self-employed.
- Piloting a scheme whereby those without guaranteed hours get paid a premium on top of the minimum wage/national living wage.
- Allowing a gap in service of a month without breaking continuity.
- Introducing collective proceedings in tribunals dealing with status, wages and working time with a recommendation of punitive fines if an employer has already lost a similar case.
- Workers get a written statement of terms and conditions and the current two month time scale to provide one is reduced to one week.
- The informing and consulting legislation should be amended to allow workers to be included and the threshold reduced from 10% to 2% of employees and enable workers to request to negotiate on business decisions which affect them. This would apply to workplaces where no union is recognised.
- Ending the Swedish Derogation which allows agencies to pay agency workers employed by them under a contract of employment, 50% of their last earnings or the minimum wage, whichever is the higher, during any break between assignments.
- Greater penalties, fines and naming and shaming.
Uber has been refused permission to leapfrog the Court of Appeal and appeal directly to the Supreme Court on the question of worker status.
However, the Pimlico Plumbers v Smith appeal against the Court of Appeal’s decision that plumbers were workers is due to be heard by the Supreme Court on 20 and 21 February 2018.
This will give the Supreme Court a chance to carefully examine the law relating to worker status.
In January 2016 the Women and Equalities Commission published their report entitled ‘Transgender Equality’.
In it they recommended that the protected characteristic of gender reassignment in the Equalities Act 2010 be amended to “gender identity”.
In August 2017 ACAS published a research paper entitled ‘Supporting trans employees in the workplace’, which also highlighted the issues faced by gender identity in the workplace and the fact that the current wording of the Equality Act 2010 (‘transsexual’ and ‘gender reassignment’) excludes intersex employees and those covered by the wider trans umbrella.
It also highlighted the lack of support for employers to deal with some of the issues which were arising.
So 2018 may be the year that sees these recommendations implemented and more support given to employers to help them deal with issues arising from gender identity in the workplace.
Caste is not currently a protected characteristic in the Equality Act 2010, although case law has confirmed that it may be covered by race discrimination where the two are closely aligned.
The Government commenced consultation on the issue in March 2017 and consultation closed on 18 September 2017.
Its response is awaited and, depending on its findings, we may see amendments to the Equality Act 2010 to introduce caste discrimination as a separate protected characteristic.
Workplace dress codes guidance
Following Nicola Thorp being sent home from her role as a receptionist for wearing shoes that were too low, a petition with 152,000 signatures prompted an investigation by the Women and Equalities Committee.
Despite their recommendations that there should be changes to the law, the Government has said it will not do so but will instead issue new guidance on what is and is not acceptable to demand of a worker. This is expected in 2018.
Knowledge of disability
Two important cases were heard by the Court of Appeal in 2017 and are due to be handed down in 2018.
The first is whether there can be direct discrimination on the grounds of disability if the decision maker was not actually aware that the employee was disabled (Gallop v Newport City Council).
The second case (Donelien v Liberata UK Ltd) deals with the extent to which the employer must go to ascertain whether an employee is disabled or not.