Christmas countdown – top five employment law developments of 2017

Every year we see a number of significant changes in employment law that affect employers, and 2017 has been no exception. With the end of the year fast approaching, we look back at our top five employment law developments.

Number 5.

At number 5, the increase in compensation limits in discrimination claims. An individual who successfully claims that they have been discriminated against can claim an award for injury to feelings to compensate them for the distress that they have suffered as a result of the discrimination. There are three broad bands of compensation, which have now been increased, making the cost of successful discrimination claims higher for employers. Employers should ensure that they are aware of their obligations and the risk of successful claims if those obligations are breached or face potentially costly consequences.

Number 4.

At number 4 is the introduction of Gender Pay Gap Reporting obligations in April. Employers with 250 or more employees on 5 April of each year are under an obligation to report their gender pay gap data, showing the difference between the mean and median hourly pay and bonus pay of male and female employees. Employers have until 4 April 2018 to publish the information on their own website and on a Government website. To date, around 500 employers have published their data. The Equality and Human Rights Commission has published an enforcement plan, warning that they will take action where employers do not comply with the requirement to publish their data. Consultation on their proposals is open until 2 February 2018.

Number 3.

At number 3, the ongoing saga relating to holiday pay showed no signs of abating. The EAT considered whether voluntary overtime should be included in the calculation holiday pay, confirming the principle that where voluntary overtime is regular, overtime pay forms part of the employee’s “normal remuneration”. In those cases, voluntary overtime should be included in the calculation of statutory holiday pay. In another significant development, the European Court of Justice has found that an individual who was wrongly considered self-employed and so had not taken his full annual leave entitlement because it would be unpaid was able to carry over his paid holiday rights until termination. The individual was able to claim holiday pay for the entire 13-year period during which he worked for the company. The ECJ largely upheld the Advocate General’s opinion, but the case will now return to the Court of Appeal.

Number 2.

At number 2, it’s the string of cases dealing with worker status. In a number of high-profile claims, individuals who had been treated as self-employed have brought proceedings in the Employment Tribunal on the basis that they are in fact workers and therefore entitled to rights including holiday pay. Perhaps the most high-profile was the Uber case, in which the EAT agreed that drivers are workers, but other similar cases including couriers of CitySprint, Excel Group Services Ltd and plumbers of Pimlico Plumbers Limited have also been successful. Delivery riders of Deliveroo were unsuccessful, largely due to the fact that they were able to substitute others to carry out their work. With appeals pending, we have certainly not heard the last of these cases. In the meantime, the Government’s response on the Taylor Review on modern working practices is eagerly anticipated. Watch this space in 2018.

Number 1.

Undoubtedly the top spot, at number 1, has to go to the Supreme Court’s decision in July to abolish Employment Tribunal fees on the basis that the fee regime prevented access to justice and was unlawful. There had been a dramatic drop in the number of claims issued after the fee regime was introduced in 2013. Following the Supreme Court’s decision, Claimants no longer have to pay fees of £1,200 to issue their unfair dismissal claim and have it heard and there has (perhaps unsurprisingly) been a reported surge in the number of claims being issued. Claimants who have already paid a fee can now apply for a refund, as can Respondents who were ordered to pay a fee-related costs order. Claims that were rejected for non-payment of a fee are likely to be reinstated.

And as for what 2018 will hold, without doubt the most significant change for most employers will be the introduction of the General Data Protection Regulation on 25 May. Employers should be preparing now for the new regime. Our employment law update on 23 January will include a masterclass on GDPR. Contact us if you would like to reserve your place.

We wish you all a very happy Christmas and a prosperous 2018!

21 December 2017

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