Employment Law in 2018 – a brief overview of upcoming changes

Employment Law in 2018 – a brief overview of upcoming changes and latest developments in UK Employment Law

Gender pay reporting, the abolition of Employment Tribunal fees and the employment status of those within the ‘gig economy’ were just some of the hot topics of 2017. So, what’s in the pipeline for 2018? Below we have highlighted some of the upcoming changes and anticipated developments that will be key for employers and HR professionals.

Key legislative updates

Increases to NMW/NLW

Following the Autumn 2017 Budget, the Government has confirmed that from 1 April 2018 the National Minimum Wage (NMW) and National Living Wage (NLW) statutory rates will increase. The rates usually increase each year when it is adjusted for inflation, but this year will see the largest increase in a decade.

Further information is available here.

Other payment increases

From 6 April 2018, the following limits on Employment Tribunal awards and statutory payments will take effect:

• UK employees’ PAYE personal allowance will increase to £11,850 per year and the higher tax rate will apply to annual earnings from £34,501 to £150,000.
• Class 1 National Insurance thresholds will increase marginally.
• Family leave statutory weekly rate figures (including maternity, paternity, adoption and shared parental pay) will increase for remaining weeks following the initial 6 week period.

• Statutory sick pay rates will increase to £92.05 a week.
• The cap on a ‘week’s pay’ (used to calculate statutory redundancy pay and unfair dismissal basic award) will increase from £489 to £508.
• The maximum compensatory award for unfair dismissal will increase from £80,541 to £83,682.
• The minimum basic award for certain unfair dismissal (such as health and safety duties and trade union membership) will increase from £5,970 to £6,203.

Further information on the revised rates is available here.

 Tax on termination payments

Reforms to clarify the taxation of payment in lieu of notice (PILON) are being implemented over the coming year, with some measures expected to take effect from 6 April 2018. The changes include:

• Treating all PILON as earnings which are taxable and subject to National Insurance Contributions (NIC).
• Limiting the exemption for injury payments – payments for injury to feelings (whether on or before termination of employment) will only be exempt from tax if they relate to a psychiatric injury or other recognised medical condition.
• Imposing obligations on the employer to pay NIC on any balance of a termination payment exceeding £30,000 (postponed until April 2019).
• Abolishing the foreign service relief exemption (but those who have worked abroad can still take advantage of the usual £30,000 exemption).

GDPR

The GDPR will undoubtedly be the biggest reform to data protection and privacy law in over two decades when it is implemented on 25 May 2018. Theresa May has reaffirmed Britain’s commitment to continued compliance with GDPR following Brexit, which provides some degree of certainty to UK businesses.

Some of the key changes which employers should pay particular attention to include:

• Reporting breaches – employers will need to inform the relevant regulator of a personal data breach within 72 hours of becoming aware of the breach, unless they can show that the breach is unlikely to result in risk to the individual’s rights and freedoms.
• Fine increases – GDPR imposes a high level of fines (the higher of €20m, or 4% of global group turnover) for any breaches or non-compliance by employers.
• Data protection officers – must be appointed by employers under certain circumstances.
• Strengthened employee rights – employees as data subjects will have greater existing and new rights, such as the right to be informed and the right to be forgotten.
• Changes to Subject Access Requests (SARs) – an employer will be required to respond to SARs within a shortened timeframe (1 month instead of 40 days) and can only charge a fee (or refuse to respond) if a SAR is ‘manifestly unfounded or excessive’.

For further information please click here.

Parental Bereavement (Leave and Pay) Bill (‘Parental Bereavement Bill’)

The House of Commons introduced the Parental Bereavement Bill to provide employees with paid leave if they have a child under the age of 18 who has passed away. It is currently being considered by the Public Bill Committee in the House of Commons and aims to be enacted by 2020.

The Bill proposes to place a legal requirement on employers to provide two weeks of protected paid time off for bereaved parents and some, or all, of the associated cost will be reclaimable. The proposed criteria for such entitlement will be the same as the statutory rates for existing family leave (such as paternity and maternity leave).

Cases to watch out for

Employment status and the ‘gig economy’

Over the past couple of years we have seen a flurry of claims against the likes of Uber, Addison Lee and Deliveroo. The individuals bringing these claims have been attempting to classify themselves as ‘workers’, rather than self-employed contractors, in order to benefit from workers’ rights (including paid holiday and national minimum wage).

One case of particular interest is Pimlico Plumbers Ltd v Smith (A2/2015/0196). The Court of Appeal confirmed the Employment Tribunal’s decision that the individual was not genuinely self-employed and was therefore a ‘worker’. However, the case has been appealed to the Supreme Court and was heard on 20 – 21 February 2018- judgment is awaited.

We also eagerly await the Court of Appeal’s judgment in Farrar, Aslam v Uber BV, Uber London Ltd, Uber Britannia Ltd (UKEAT/0056/17) on the question of whether a taxi-driver is a worker or a self-employed contractor for national minimum wage, holiday pay and whistleblowing protection purposes.

Equal pay

The Court of Appeal is due to hear the case of Asda Stores v Brierley (A2/2017/2600) on 10 October 2018. The case concerns over 7,000 equal value claims and the issue for determination is whether the (mainly female) staff based in Asda stores are entitled to compare themselves to the (mainly male) staff based in distribution centres for the purposes of an equal pay claim.

Data protection and employee information

The Court of Appeal is due to hear an appeal in the case of Various claimants v WM Morrison Supermarkets PLC (A2/2018/0090) by 12 December 2018 to determine whether the employer supermarket was vicariously liable for the leak of personal data of employees. This class action litigation involves claims by over 6,000 staff in relation to a data breach by a rogue employee who illegally shared online a spreadsheet containing bank, salary and NI details of almost 100,000 staff.

If you require any further information on the forthcoming changes, please contact James Baker.