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30th December 2016

Employment Law – What lies ahead for 2017?

Employment Law - What lies ahead for 2017?

With the New Year just around the corner, we take a look at what we can expect from an HR and Employment law perspective in 2017, which looks set to be a busy year!

Brexit

Not directly related to employment law, of course, but Brexit is probably the single biggest thing likely to happen in 2017. Article 50 is expected to be triggered at the end of March 2017.  The current legal challenge regarding this could impact on the proposed timetable but, if it does go ahead, we may see some changes to UK employment law which has been derived from Europe.  The free movement of workers is a key issue to look out for, with many employers relying on workers from the EU.

Gender Pay Gap Reporting

The draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 are expected to come into force on 6 April 2017, with employers being required to publish their first reports by no later than 4 April 2018.

Organisations with 250 or more “relevant” employees will be required to publish information relating to employee pay and bonus pay, as well as information on the number of men and women in each quartile of the organisation’s pay distribution.

Apprenticeship Levy

This is due to come into force on 6 April 2017, with employers who have an annual payroll of £3m or more being required to pay a levy of 0.5% of their annual PAYE bill to the Government, to help fund three million apprenticeships in the UK by 2020.

However, each employer will receive an allowance of £15,000 to offset against their levy payment, with the idea being that Employers who are committed to training will be able to get back more than they put in by training sufficient numbers of apprentices.

Salary Sacrifice Schemes

From April 2017 only childcare vouchers, Cycle to Work, pensions and ultra-low emission cars will be available for new salary sacrifice schemes.  Existing schemes will be protected and continue to run up until April 2018.  Cars, accommodation and school fee schemes will be allowed to run until April 2021.  This could require a re-think for employers not only around the financial impact, but also in how to continue to offer flexible “perks” to the workforce, as part of total reward.

Data Protection

The new EU General Data Protection Regulation (‘GDPR’) was passed by the European Parliament on 14 April 2016 and came into force on 25 May 2016.  The GDPR replaces all data protection legislation in EU member states, including the UK’s Data Protection Act 1998, without the need for further legislation.

The GDPR will apply in the UK from 25 May 2018. The government has confirmed that the UK’s decision to leave the EU will not affect the commencement of the GDPR.

Together with new rights for employees, including the much discussed “right to be forgotten”, the GDPR imposes more onerous obligations on employers, with fines of up to a maximum of €20million or 4% of worldwide turnover in some cases. This is a significant increase on the current maximum penalty of £500,000 in the UK.

Immigration Skills Charge

Employers sponsoring skilled foreign workers will have to pay an annual immigration skills charge of £1,000 per employee from April 2017 (with a reduced rate of £364 for small or charitable organisations).  The immigration skills charge is designed to cut down on the number of businesses taking on migrant workers and incentivise training British staff to fill those jobs.

There will be an exemption to the charge, meaning that it won’t apply to PhD level jobs, and to international students switching from student visas to work visas.

Case law

As well as the legislative changes outlined above, we can expect to see some appeals from the case law which has created a stir in 2016 and receive decisions on other cases currently pending.

Aslam and Others v Uber BV and others.  This case relates to employment status, and October 2016 saw the Employment Tribunal decide, overwhelmingly, that the taxi drivers providing services through Uber are in fact workers, and thus entitled to receive the national minimum wage and paid annual leave, amongst other things.  This decision is expected to be appealed by Uber.

Brierley & Others v Asda Stores Ltd.  Asda is facing a mass equal pay claim in the employment tribunal by shop floor workers, who are predominantly female and who are trying to compare their jobs in retail workers with their colleagues who work in distribution centres, which are traditionally male dominated.  This is set to be the biggest equal pay claim against a private-sector employer.

Chesterton Global (t/a Chestertons) v Nurmohamed.  This case relates to the ‘in the public interest’ requirement for whistleblowing claims.  The EAT (Employment Appeal Tribunal) held that matters potentially affecting the operation of a commission scheme of more than 100 managers at a large firm of estate agents could be in the public interest.  The case is due to be considered by the Court of Appeal in June 2017.

R (on the application of Unison) v Lord Chancellor and another.  The ongoing legal challenge brought by Unison in respect of the implementation of Employment Tribunal fees continues, with the Supreme Court set to hear Unison’s appeal against the Court of Appeal’s decision, in March 2017.

British Gas Trading Ltd v Lock.  On the subject of ongoing cases, this matter continues to rumble on.  In October 2016, the Court of Appeal determined that commission should be included within holiday pay.  British Gas is expected to appeal to the Supreme Court.

Bougnaoui and another v Micropole Univers; Achbita and another v G4S Secure Solutions NV.  These two cases resulted in conflicting outcomes from their respective countries’ Advocate Generals, regarding whether employers could ban religious dress.   The European Court of Justice is expected to consider both cases and deliver its judgment in 2017.

Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice.  The Supreme Court is set to hand down its judgments in these cases relating to indirect discrimination, with the hope that they will set out clearly how employment tribunals should be approaching indirect discrimination claims.

Stay tuned in 2017 as we update you on these cases and what they mean for your business, and more.

Happy New Year!

*All information is correct at the time of publishing

Kate Shawcross

Napthens LLP – Associate Solicitor - Employment Law

Kate is one of our Employment Law Specialists from Napthens Solicitors. Read more

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