In 2017 we saw a number of proposed changes to legislation and tribunal cases which will impact the workforce going forward as we enter 2018. Here we recap over these important points and consider the impact they are likely to have on employment and the wider workforce.
Getting ready for the GDPR:
As 2017 has drawn to a close, employers are preparing for the GDPR which is due to come into force on 25 May 2018. This will give individual employees greater access to their own personal data and greater control over their data in addition to the “right to be forgotten”.
Whilst there have been many negative comments raised about the introduction of the GDPR, it could be a useful opportunity for companies to review and update their existing data protection policies and contractual clauses. It may also be time to consider additional training for staff who are responsible for data protection.
For more information please see our previous article on the GDPR.
Gender pay gap reporting
Whilst some companies have chosen to publish their data already, all companies with more than 250 employees will be required to publish their gender pay gap data by 6 April 2018. From examples like those at the BBC, we have seen the impact that large pay gaps can have, not only on employee morale but also on the reputation of the business.
For more on gender pay gap reporting see our previous article.
The apprenticeship levy was introduced in April 2017 in an aim to address skill shortages and increase productivity. The levy requires that employers with a pay bill of over £3 million each year must pay the levy and the funding must be spent on apprenticeship training.
For more on the apprenticeship levy see our previous article.
The employment status of individuals has been a growing concern and has gained a lot of coverage following Employment Tribunal cases involving Uber, City Sprint and Pimlico Plumbers. The Taylor report was also published which provided a number of recommendations for the government to review with regards to worker status. For the 1.1 million people working within the gig economy and for employers using ‘contractors’ to carry out work, 2018 is likely to bring some changes if the recommendations put forward by Matthew Taylor are to be implemented.
In 2018 we will see the outcome of Aslam and others v Uber BV and others, a high-profile case brought by Uber Drivers. In the employment tribunal decision in October 2017, the tribunal held that Uber Drivers are in fact Workers meaning they should be entitled to basic worker rights such as paid annual leave. However Uber appealed against the first instance decision and the EAT subsequently dismissed the appeal. Uber appeal will now be held by the Court of Appeal in 2018.
Abolition of Employment Tribunal fees
A Supreme Court ruling in 2017 led to the abolition of tribunal fees after their re-introduction in 2013. The Supreme Court ruled that tribunal fees were unfair and therefore individuals are now entitled to refunds for payment made. Whilst the cost of this is clearly significant, there is also likely to be concern among employers about employees bringing malicious or weak cases. 2018 is therefore likely to see a sharp increase in the number of cases brought to tribunal.
Without prejudice discussions
In 2017 the Employment Appeal Tribunal in Graham v Agilitas IT Solutions Ltd, the EAT held that the employer was unable to disregard privilege on parts of a conversation and rely on other parts at the same time. In this particular case the employer raised concerns regarding the employee’s performance “without prejudice” however, following these discussions the employer decided to take disciplinary action on some comments that the employee had made. The EAT subsequently held that it was not possible to rely on certain parts of a protected conversation and disregard others. This highlights the importance of carefully considering any without prejudice conversations and when it might be appropriate to hold such a discussion.
Annual leave and holiday pay
The Sash Window Workshop Ltd and another v King case might see many employers paying compensation for previously unpaid leave. In 2017, the European Court of Justice (ECJ) decided that Mr King was due compensation for holiday not taken over a 13 year period. Mr King was a commission based salesman and therefore the decision could mean that anyone with worker status will be able to carry leave over to subsequent years if they are unable to take it for reasons beyond their control. More significantly, it could lead to large compensation payments for businesses whose workforces may be able to argue that they should be recognised as workers, including many in the gig economy.