What's new in employment law? Alacoque Marvin from Wrigleys looks at key developments and what third sector employers need to know.

Brexit and employment rights

The election of a new government in December has arguably brought more certainty to the political landscape. The Withdrawal Agreement Bill has now passed and Brexit looks certain to take place on 31 January 2020, with a transition period until 31 December 2020. EU/EEA workers who have not yet applied for settled status and are resident in the UK before the end of the transition period can do so until 30 June 2021. Otherwise, EU/EEA workers who wish to live and work in the UK in the future look likely to be subject to the same skills-based immigration rules as other foreign workers. A Migration Advisory Committee report on this proposed immigration system is expected in the near future. Further details of the related consultation are available here.

However, since employment rights were removed from the Withdrawal Agreement Bill and referred to instead in the non-binding Political Declaration, there is now no guarantee that employment rights will develop in alignment with those available to EU citizens. Recent Government announcements have confirmed that it is intended that the lower courts (not only the Supreme Court) will be able to "roll back" EU legal rulings after the UK's departure from the EU. This may mean that UK employment law will begin to diverge from EU law, although such divergence may be limited by the terms of any future trade agreement between the EU and the UK.

The Queen's speech in December promised a new Employment Bill and gives some indication of the new Government's initial priorities. The Queen's speech included reference to:

  • a right for all workers, such as those on zero hours contracts, to request a more predictable and stable contract after 26 weeks' service;

  • the right for parents to take extended paid leave if their babies require special neonatal care;

  • extended redundancy protection for pregnant women which will begin when the employee notifies her employer of the pregnancy and end six months after maternity leave;

  • a new right to one week’s leave for unpaid carers; and

  • a new approach making flexible working the default unless employers have a good reason not to grant it.

Legislation coming into force in April 2020

There are some important legislative changes which are already planned and come into force on 6 April 2020.

  • From this date a written statement of employment particulars must be provided to all workers, not just to employees, by day one of employment. The outgoing rules are that employees have to be provided with the statement within two months of starting employment.

  • The Parental Bereavement (Leave and Pay) Act 2018 is expected to come into effect giving bereaved parents the right to two weeks' paid leave following the death of a child under 18.

  • A new reference period of 52 weeks will be used to calculate holiday pay for workers with variable hours. This is an increase on the current 12 week reference period.

  • Termination payments above the £30,000 threshold will be subject to class 1A employer NICs (as well as income tax).

  • The off-payroll working tax rules will be extended to large and medium-sized companies in the private sector (including charitable companies).

Key case law decisions from 2019

Here are some of the most useful cases of the year for charity employers. Click on the links to find out more about each case and the key learning points.

If you are thinking about suspending an employee…

Case: London Borough of Lambeth v Agoreyo  

Learning points:

  • Suspension could be in breach of contract unless you have good reason to suspend – it should never be an automatic or knee-jerk reaction

  • Consider alternatives to suspension

  • Record in writing your reasons for suspension if you decide to suspend

If you are considering covert monitoring of staff…

Case: López Ribalda and Others v Spain

Learning points:

  • Using CCTV to video workers without their knowledge will only be lawful in exceptional circumstances

  • These include when the employer has a legitimate reason to the use covert monitoring, such as a suspicion that criminal activity or serious malpractice is taking place, and open monitoring would hamper the prevention or detection of that activity

  • Employers are more likely to be able to justify its use where the intrusion into workers' privacy is lower (for example it is used in a public area) and where its use is short term and focused on suspects following evidence of malpractice

  • Footage collected in this way should be shared with others only on a need to know basis as part of the investigation and disciplinary process

Or you are planning a disciplinary investigation…

Case: The Governing Body of Tywyn Primary School v Aplin

Learning points:

  • Investigation reports should set out the facts and provide a recommendation about whether there is a case to answer

  • Investigation reports should not include value judgements or hostile opinion and should not be prejudiced on the basis of a protected characteristic

  • Employees facing a disciplinary hearing should usually see all the evidence referred to in the investigation report

If you are calculating holiday pay for term time only staff…

Case: The Harpur Trust v Brazel

Learning points:

  • Holiday leave for workers on 5.6 weeks' statutory holiday can be calculated as it accrues on the basis of 12.07% of hours worked (based on 46.4 working weeks as 5.6 is 12.07% of 46.4 weeks)

  • Working out holiday pay based on an additional 12.07% of pay will not always be correct, particularly for workers who have unpaid non-working weeks during the year like term time only staff

  • Workers with variable hours should be paid average weekly pay for a week's holiday, based on a reference period of 12 weeks (or 52 weeks from 6 April 2020)

  • This might mean that term time only workers will receive a higher percentage of their pay as holiday pay

If you contract with "self-employed" individuals through their own company…

Case: Community Based Care Health Ltd v Narayan

Learning points:

  • Someone who is called a "self-employed" consultant, contractor or freelancer might be your worker or employee even if they are paid through their own company

  • HMRC, the tax tribunal or an employment tribunal could find someone to be a worker if the individual has to carry out the work themselves and is not in business on their own account

  • An individual could be found to be an employee if:

    • the individual is also subject to a high level of control on a day to day business and integrated into the organisation like any other employee; and

    • the individual has guaranteed /minimum hours or a predictable working pattern over a long period of time meaning there is an ongoing obligation to provide and accept work.

One to watch out for…

A recent tribunal case has held that workers (and not just employees) are protected under the TUPE Regulations.  The tribunal judgment is available here.  More on this will follow.

Alacoque is an employment lawyer working within the charities and social economy team at Wrigleys Solicitors. She regularly publishes topical and informative articles on key developments in employment law relevant to third sector employers. Alacoque is a regular speaker at VAL Workforce Development Network meetings and at Wrigleys' Employment Law Breakfast Briefings. Alacoque edits Wrigleys' monthly Employment Law Bulletin. Information about upcoming Breakfast Briefings along with past articles and bulletins can be found on the Wrigleys Solicitors Website: www.wrigleys.co.uk.

The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries please contact Alacoque Marvin on alacoque.marvin@wrigleys.co.uk or 0113 204 1148.

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