New developments in employment law to look out for in 2017

Melinda Allison discusses some of the new developments in employment law to look out for this year…

Brexit … no bonfire of labour law

If employers were hoping for a mass repeal of employment law following the Brexit vote then they may be disappointed.

According to a report by Stephen Taylor, Senior Lecturer in HRM at the University of Exeter and the CIPD’s Chief Examiner, the 19,000 regulations with an EU origin estimated to be on our statute books, are all likely to remain in force. In practice, the terms of a future settlement with Europe are likely to restrict what is possible, at least as far as employers trading in the EU are concerned. Additionally, there are grounds for arguing that in some areas, far from being diminished, employment rights are just as likely to be enhanced following Brexit. Taylor believes it is plausible to foresee a situation in which future UK governments find themselves obliged to strengthen UK workers’ rights thanks to new EU directives which they have been neither able to block nor help shape from the inside. Paradoxically, he says, Brexit might ultimately lead to more rather than less EU-inspired statutory employment protection for UK workers, which won’t be good for business.

Fees prevent tribunal claims

Are the new tribunal fees which were introduced in 2013 deterring would be applicants from pursuing claims? The Ministry of Justice (MoJ) review published at the end of January says there is ‘no conclusive evidence’ but is this really the case? Recently published statistics reveal that employment tribunal claims have dropped by more than two thirds since the inception of fees which require complainants to pay a deposit to lodge their claim plus a further sum to progress to a hearing. Good news, says the MoJ, which concludes that its introduction of mandatory early conciliation through ACAS has assisted many claimants to resolve their disputes without taking them to tribunals, a key objective of the introduction of fees. But critics disagree, as one of many, Law Society President Robert Bourns declared: ‘The truth is employment tribunal fees have had a chilling effect on the number of people able or willing to bring a case against their employer.’ A legal challenge against the introduction of fees has been brought by Unison and scheduled to be heard by the Supreme Court in March. In the meantime, the Government has launched a formal consultation about the fee system with a view to extending the remission scheme which is means tested – watch this space…

Taking a sickie …

Taking a sickie can be a fraudulent act according to the Employment Appeal Tribunal (EAT) which is increasingly finding in favour of bosses who dismiss without notice employees who dishonestly claim sick pay when they could be working. If employers have evidence of someone exaggerating the extent of their illness then they are within the band of ‘reasonable responses’ to dismiss without notice. Taking a sickie now has case law to support employers treating the matter with the utmost seriousness.

Is the law changing around the definition of a disability?

The definition of disability came into force in 1996 and connects being disabled with an inability to carry out ‘normal day to day activities’ which, according to our domestic courts, does not included work. Or should it? The European Court of Justice has been given advice by the Advocate General which extends the definition of disability to include that which ‘may hinder the full and effective participation of the person concerned in professional life’. This is very different from a test based on ‘normal day to day activities’, the implication being that if you do a job that is physically demanding but you are prevented from doing it because of an incident or injury, then that, in itself, may contribute to you being classed as disabled even if you can complete those tasks which most people do on a regular or fairly frequent basis. Potentially, then anyone who is in a physically demanding job and is unable to do it because of injury now has some protection against dismissal where historically if they could live their life in a normal way, they would not be protected. This state of affairs is currently only advisory but EAT recently took the new definition on board in one of its decisions so it will be interesting to see how the case law develops in this area.

Gender pay gap – companies named and shamed

It’s a well-publicised fact that many women are consistently earning less for doing the same job as their male counterparts but could this unfairness be about to change? From April, the Government will demand that companies with 250 or more employees must publish details of any gender pay imbalances on their website where they will remain posted for at least three years. The aim is to expose those companies which pay women less than men for doing work of equal value. ACAS and the Government Equalities Office have launched a new guide to help organisations abide by the new gender pay gap regulations but will it encourage all businesses whatever their size to comply? With many women around the country working for small, low paying companies, inequality is likely to continue for some time to come.

Who is entitled to what employment rights?

Rules for companies that employ workers in the gig economy could change following a recent Court of Appeal decision in a landmark case. Earlier this month, Pimlico Plumbers lost its legal battle over the status of its workers, the latest in a string of rulings to find in favour of the employee. The Pimlico Plumbers case comes hot on the heels of a tribunal ruling in January which agreed that a City Sprint courier should be classed as a worker rather than self-employed. The rulings hold wider implications for gig economy firms like Deliveroo and Uber which are both embroiled in rows over employment status.

The Pimlico Plumbers judgement serves as yet another reminder to employers that they should consider carefully the employment status of their workers. The case is likely to have lasting consequences for companies as it means at the very least such workers should be entitled to holiday pay and the national minimum wage. In the wake of this judgement, we expect to see many people who are employed by companies on a job by job basis review their employment rights. Watch this space…

What do you think about these recent developments in employment law? From the implications of Brexit to the gender pay gap – I would love to hear your views.  Please leave a comment below.