As another busy year in the employment department comes to a close, we take a look back at some of the key issues which have shaped employment law and, ultimately, your business in the last 12 months.
We started off in January with the usual queries about restructures, redundancies and the aftermath of Christmas parties.
February focused on the Supreme Court ruling of the much-awaited Pimlico Plumbers case on workers status. Mr Smith was held to be a worker despite contractual documentation stipulating that he was self-employed. When looking at the 'full picture', and importantly, at the fact that his ability to arrange for a substitute to carry out his work was limited, it was found that he was required to provide a personal service, a key feature of worker status. In the more recent Addison Lee case (decided in November), the EAT took the same approach in deciding that Addison Lee's drivers were workers.
By March, we were feeling the full force of the "Beast from the East". It brought into sharp focus the importance of having policies in place to deal with situations where, because of adverse weather or otherwise, the workplace is closed or employees can't get to work.
Mandatory gender pay gap reporting for UK companies with over 250 employees, and certain public sector authorities, was introduced in April. Unsurprisingly, the statistics at the time that the reporting requirements were introduced revealed that a substantive majority (78%) of reporting organisations pay their male staff more than female staff when averaged across the board.
Without question, one of the most significant legal developments this year has been the implementation of the GDPR and Data Protection Act 2018. In the lead up to implementation of the GDPR on 25 May, we launched our DataGuard tool which has helped all kinds of businesses to get to grips with their data protection obligations and to continue to demonstrate best practice. There was never any doubt that achieving the 'gold standard' in terms of data protection compliance was going to be a marathon and not a sprint. Our DataGuard tool is available to deal with any hurdles that may be coming our way in 2019 and beyond.
In June, headlines focused on the recommendations of giving all 25 year olds £10,000 as a 'citizen's inheritance' to seek to preserve the 'intergenerational contract'. The Resolution Foundation report 'A new generational contract' was the product of growing societal concern that the established intergenerational contract (where we all work hard, pay taxes and look after our elders in our youth on the expectation that the youngsters of the future will do the same for us in our old age) is increasingly unsustainable and nearing breaking point. Commentary at the time was keen to highlight that for most millennials, it's more about having an "Instagram-able" lifestyle than the money per se. As such, employers who help their workforce maintain a good work-life balance are most likely to attract (and retain) millennial talent. There's no point paying your young employees a high salary if you don’t also give them the opportunity to enjoy it (and to let the world know how much they are enjoying it!)
The heat wave coupled with the World Cup saw the whole country in holiday mode in July – whether they were actually on holiday or not. It was a glorious time, but many employers found themselves having to remind their staff of the expected standards of behaviour in the workplace – including in relation to dress codes, time keeping and authorised absences.
Also in July, the National Living Wage (Extension to Young People) Bill had its second reading debate but the reading was adjourned. The debate will be resumed on Friday 25 January 2019. If the bill is passed, employers will be obliged to extend the National Living Wage (which is due to rise to £8.21 in April 2019) to 18-24 year olds. The national living wage is currently only payable to those over 25.
A case which didn’t get much media attention but which has potentially very far reaching implications for our more creative clients was decided in August. In the case of Sprint Electric Ltd v Buyer's Dream Ltd, it was determined that an individual who was wrongly classed as a self-employed contractor lost his rights to IP created during his deemed employment – the IP belonged to the employer. Individuals (and companies) have long been aware of the tax-risks associated with deemed employment status. However, the risk that the rights to a money-making invention may be affected by a finding of deemed employment status served as an important reminder of the far reaching implications of such a finding.
In September, the Parental Bereavement (Leave and Pay) Act 2018 received Royal Assent. Under this legislation (expected to come into force in April 2020) employees who lose a child under the age of 18 will be entitled to two weeks away from work to allow them some time to grieve.
In the 'Gay Cake' case in October, the Supreme Court confirmed that Mr and Mrs McArthur were not obliged to compromise their right not to express support for gay marriage by being forced to ice a message on a cake. Refusing to ice the message on this basis was not discriminatory against Mr Lee (the openly gay customer), as they would have refused to ice the message for anyone, irrespective of whether they were gay or not.
Also in October, the rather frightening case against Morrisons supermarket was decided in favour of employees whose data had been compromised as a result of the malicious actions of a rogue employee. 99,998 employees' data was compromised as a result of a rogue employee sharing it online. As part of the Morrisons case, the magnitude of the potential liabilities was raised as part of their defence, but in response the court essentially said "that's what insurance is for".
In the last two months of the year, the headlines have been dominated by Brexit. With the parliamentary vote rescheduled for the end of this week, it seems fairly certain that the Christmas period will provide little respite for Mrs May (or the rest of us). Who knows what we will face when we come back to work in the new year, only three months before the proposed exit date of 29 March 2019...
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