Key employment law changes on the horizon for Spring 2019

We have been enjoying the warmest winter days since records began and Spring is well on its way. We have put together a summary of some of the key employment law changes and potential developments for employers to look out for this Spring and beyond.

Spring 2019…..

Ethnicity pay gap reporting

As we reported last year, the Government has published consultation on requiring employers to publish their ethnicity pay figures. The consultation seeks views on questions including what ethnicity pay information should be reported; what supporting data should be disclosed; whether an employer should be required to publish an action plan for addressing any disparities in ethnicity pay; and what size of employer should be within scope for mandatory ethnicity pay reporting. Consultation closed in January 2019 and we will bring you updates on this as they are published.

Brexit

Clearly the biggest development for the Spring is Brexit. The UK is currently scheduled to leave the EU on 29 March 2019, but how will employment rights be impacted if there is no deal? The Government has published “Workplace rights if there’s no Brexit deal”. This clarifies that in most cases there will be no changes to workplace rights when the UK leaves the EU; and that “In a ‘no deal’ scenario, there are no expected financial implications or impacts for citizens or businesses operating in the UK (whether UK or EU-based) in regard to workplace rights.” There will, however be some implications in relation to European Works Councils and the insolvency of some employers.

Increased financial penalties for employers

Draft regulations which are due to come into force on 6 April 2019 will quadruple the maximum penalty for an aggravated breach of employment law from £5,000 to £20,000. We are not aware of any reported cases that illustrate what a Tribunal would consider to be “aggravating” features, although a Tribunal may take into account the size of the employer, the duration of the breach of the employment right and the behaviour of the employer and employee. Current explanatory notes state that a Tribunal may be more likely to find that an employer’s behaviour has aggravating features where the action was deliberate or committed with malice; the employer is an organisation with a dedicated HR team; and/or the employer has repeatedly breached the employment right concerned.

Itemised payslips

With effect from 6 April 2019, new legislation will introduce a right for all workers to be provided with an itemised pay statement and the ability to enforce this right at an employment tribunal. There will be a requirement for itemised payslips to contain the number of hours paid for where a worker is paid hourly. The figures must be specific if different rates of pay apply for different types of work. The Department for Business, Energy and Industrial Strategy has published guidance for employers on the new provisions.

Statutory payments increase

The weekly rate of SSP will increase from £92.05 to £94.25 from 6 April 2019.

Statutory maternity, adoption, paternity and shared parental leave pay will increase from £145.18 to £148.68 per week with effect from 7 April 2019 (or 90% of average weekly earnings if this is less).

National Living Wage

With effect from 1 April, the National Minimum Wage and National Living Wage will increase. The new rates will be:

£8.21 for workers aged 25 and over;
£7.70 for workers aged 21 – 24
£6.15 for workers aged 18 – 20;
£4.35 for workers aged under 18; and
£3.90 for apprentices.

……and beyond

New statutory code of practice on sexual harassment

In its response to the Women and Equalities Select Committee’s report on sexual harassment in the workplace, published on 18 December 2018, the Government announced 12 broad action points. These include asking the Equality and Human Rights Commission to develop a statutory code of practice on sexual harassment. It is suggested that observing this code will help employers demonstrate that they have taken reasonable steps to prevent sexual harassment taking place. The Government will also be consulting on a mandatory duty to protect workers from sexual harassment; how best to tackle third-party harassment; protection of interns and volunteers; the possible extension of time limits; and the better regulation of non-disclosure agreements.

Employment tribunal reforms

The Law Commission’s consultation on employment tribunal reform closed in January 2019. The consultation seeks views on issues including whether the three-month time limit for most employment tribunal claims should be changed to six months; and whether the employment tribunal’s limit of £25,000 for breach of contract claims should be increased.

Possible reintroduction of employment tribunal fees?

Tribunal fees were introduced in July 2013. The effect was that a Claimant who issued a claim for unfair dismissal that progressed to a hearing would pay a total fee of £1,200. The Supreme Court held in 2017 that the scheme was unlawful and Tribunal fees were therefore abolished. Claimants who had paid a fee were able to seek a refund. However, the Ministry of Justice has noted recently that the Supreme Court Judgment leaves open the possibility of a new scheme which would strike a balance between increasing employment tribunal funding and safeguarding the delivery of justice. In November 2018 it was suggested in evidence given to the House of Commons Justice Committee that a new fee regime was in development. No timescale for this has been reported, however.

Comment

If you have any queries about any of these changes or other employment law matters, please contact us.

28 February 2019

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