When selecting our HR Consultant it was important to us that we found someone who understands our business within the care industry and the CQC standards we adhere to, Lorna has much experience within the domiciliary care sector and supporting care teams. Lorna has consistently provided our Company with quality, realistic and easy to implement advice, guidance with staff issues, policies and contracts taking the enormous responsibility of HR off my to do list!
– Toni Mousley, Managing Director, Unique Care Provider (UCP) Ltd
Blog
New and upcoming Legislation for review
New and upcoming Legislation for review – do not hesitate to contact me if you would like further information on how the following may affect your business;
Mixed-sex civil partnerships are introduced in England and Wales
Implementation date: 2 December 2019
The Civil Partnership (Opposite-sex Couples) Regulations 2019 enable mixed-sex couples to form civil partnerships in England and Wales. Previously, only same-sex couples could form civil partnerships. This change has an effect on survivor benefits in pension schemes. For example, the Local Government Pension Scheme (Amendment) Regulations 2019, which came into force on 31 December 2019, make provision for survivor benefits when a Local Government Pension Scheme member dies and leaves behind a surviving mixed-sex civil partner.
Reform to intermediaries legislation (IR35) is extended to private sector
Implementation date: 6 April 2020
The rules on off-payroll working in the private sector are amended, with the April 2017 changes to intermediaries legislation (IR35) in the public sector being extended to the private sector. The organisation, agency or other third party are made responsible for operating IR35, as opposed to the individual being engaged. However, small organisations are exempt. More details are set out in the Government’s consultation response: Off-payroll working in the private sector – summary of responses, policy paper: Rules for off-payroll working from April 2020, and factsheet: Off-payroll working rules from April 2020.
Increase in holiday reference period from 12 weeks to 52 weeks
Implementation date: 6 April 2020
The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 increase the reference period used for determining a week’s pay when calculating holiday pay for workers with irregular hours from 12 weeks to 52 weeks. The Government’s Good work plan states that the changes will allow greater flexibility for workers in choosing when to take holiday, particularly for those in seasonal or atypical roles that limit some workers from benefiting from their full holiday pay entitlement.
Extension of the right to a written statement to all workers
Implementation date: 6 April 2020
The Employment Rights (Miscellaneous Amendments) Regulations 2019 extend the right to a written statement of employment particulars to all workers (including employees).
The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 provide that access to a written statement will be a day one right for all workers (including employees). Employers will also have to provide additional information as mandatory content for a written statement.
Parental bereavement leave rights take effect
Implementation date: April 2020
The Parental Bereavement (Leave and Pay) Act 2018 provides for at least two weeks’ leave for employees following the loss of a child under the age of 18 or a stillbirth after 24 weeks of pregnancy. Employees with 26 weeks’ continuous service will be entitled to paid leave at the statutory rate and other employees will be entitled to unpaid leave.
Technical amendments to employment law to ensure smooth Brexit take effect
Implementation date: To be confirmed
The Government introduces legislation to ensure that employment laws continue to operate effectively on the day the UK leaves the EU. The legislation makes minor technical changes, including amending and removing inappropriate language and references.
The latest versions of the Regulations to be published are:
- Employment Rights (Amendment) (EU Exit) Regulations 2019;
- draft Employment Rights (Amendment) (EU Exit) (No.2) Regulations 2018;
- Insolvency (Amendment) (EU Exit) Regulations 2019;
- draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2018; and
- draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) (No.2) Regulations 2018.
New legislation to ensure that tips and gratuities go to staff
Implementation date: To be confirmed
The Government intends to introduce legislation to prevent employers from taking tips and gratuities that should go to staff. The Government’s announcement states that the changes are to prevent “poor tipping practices, including excessive deductions being made from tips left by customers” and that it will introduce the legislation “at the earliest opportunity”.
Employment Law Updates 2019
Although Brexit dominates the news, there will be a number of important employment law developments in 2019.
BREXIT
1. Post-Brexit immigration rule changes
Regardless of whether a deal on the UK’s exit from the EU is agreed, the rules around the employment of EU nationals will change sooner or later.
Once the UK leaves the EU, free movement will end, although in practice this is likely to be delayed pending legislation to repeal the current arrangements. Also, it will take time to put in place the practical arrangements necessary to make this possible.
The government has introduced a scheme under which EU workers already in the UK will be able to apply for “settled status”, to be able to live and work in the UK indefinitely.
However, employers need to be aware that, going forward, the employment of workers from the EU is likely to be subject to restrictions in the same way as the employment of other foreign nationals, so will need to adjust their recruitment processes accordingly. Recruitment and retention policies will need to be reviewed for effective workforce planning.
2. Start gathering evidence for executive pay reporting
Rules coming into force on 1 January 2019 mean that UK quoted companies with more than 250 employees will have to report on ratios between the CEO and employees’ pay and benefits.
The requirement applies to financial years beginning on or after 1 January 2019 so the first tranche of reporting will start in 2020. However, affected companies should gather their evidence in good time to be able to calculate their pay ratios by the deadline.
The information will have to be included in the directors’ remuneration report.
3. Extend itemised pay statements to workers
From 6 April 2019, the right to an itemised pay statement will extend to workers, not just employees.
Further, where a member of staff’s pay varies according to time worked, the employer will have to include on the itemised pay statement the total number of hours worked for which variable pay is received.
This can be done either as an aggregate figure or as separate figures for different types of work or different rates of pay.
4. Publish second gender pay gap report
Employers with 250 or more employees on the “snapshot date” ( 31 March in the public sector and 5 April in the private and voluntary sectors) must report on their percentage gender pay gap annually within 12 months of that date.
This means that the deadlines for the second round of reports are 30 March or 4 April 2019. Employers need to gear up to publish their second report, if they have not done so already.
Organisations must publish reports on their website and on the GOV.UK website. In the private and voluntary sectors, reports must also be accompanied by a written statement confirming their accuracy, and be signed by a senior person as prescribed by the legislation.
There is no obligation on employers to provide a narrative around any gender pay gap but they should bear in mind that an explanation may help to limit any reputational damage. Given that comparisons are likely be made with the previous year’s report, consider highlighting any reduction in the gap or be able to provide good reasons for any increases in the gap.
5. Be aware of national minimum wage rate increases
The national living wage is due to increase to £8.21 per hour from 1 April 2019.
Other national minimum wage rates are also due to increase, with hourly rates rising to £7.70 for workers aged at least 21 but under 25, to £6.15 for workers aged at least 18 but under 21 and to £4.35 for workers aged under 18 who are no longer of compulsory school age.
The hourly apprentice rate will increase to £3.90 and the daily accommodation offset will increase to £7.55.
6. Meet increased statutory family and sick pay rates
The weekly amount for statutory family pay rates is expected to increase to £148.68 for 2019/20. This rate will apply to maternity pay, adoption pay, paternity pay, shared parental pay and maternity allowance.
The increase normally occurs on the first Sunday in April, which in 2019 is 7 April.
The weekly rate for statutory sick pay is expected to increase to £94.25 from 6 April 2019.
7. Start preparing for parental bereavement leave and pay
The government has confirmed that it intends to introduce a right for bereaved parents to take paid time off work.
Under the current proposals, bereaved parents will be able to take leave as a single two-week period, as two separate periods of one week each, or as a single week. They will have 56 weeks from their child’s death to take leave.
The new right is expected to come into force in April 2020, but employers should start preparing for it during 2019, and could decide to introduce their own bereavement leave policy if they don’t already have one.
8. Look out for other developments in the pipeline
Employers should keep abreast of other proposed and potential employment law developments, including:
• Reform to intermediaries legislation (IR35) to be extended to the private sector (expected 6 April 2020).
• Changes to employer NIC treatment of termination payments (expected 6 April 2020).
• Requirement to publish family-friendly policies.
• Duty to consider whether roles can be carried out flexibly.
• Ethnicity pay reporting.
• Changes to rehabilitation of offenders periods in Scotland.
Aquatrols Europe Ltd
Being a small business, trying to implement some large changes in our company without help could have seen some major obstacles. Lorna’s professionalism and expertise has guided the company through the minefield of HR. Where problems have arisen, Lorna has always provided a realistic and thoughtful solution taking all aspects of people, the business and legality into consideration. Her efficiency and organisational skills mean that all projects have been delivered in a timely manner and her support to me, as the project leader, has been invaluable. Without Lorna’s input, our company would not have achieved these goals. We are now in a strong position to take our business forward and will continue to use the support and knowledge that Lorna provides in order to grow and evolve.
.– Sarah Vousden, European Business Manager, Aquatrols Europe Ltd
Employment Law 2018
Following are some considerations on the key issues likely to arise.
Large compliance projects for data protection and gender pay gap reporting will dominate the HR agenda in 2018. Employers are likely to see costs increase as the apprenticeship levy and additional fees for sponsoring foreign workers are introduced, and tax savings for employee benefits are significantly reduced.
Employers will also continue to deal with the implementation of restraints to public-sector exit payments and new trade union balloting rules in 2018.
1. GDPR comes into effect
The General Data Protection Regulation (GDPR), which updates and harmonises data protection law across the EU, will come into effect on 25 May 2018 for all EU member states, including the UK.
Data protection policy
Organisations will be conducting data audits and policy reviews in the lead up to next May, to ensure that their data protection practices are GDPR compliant.
Many employers will need to issue new or updated privacy notices to employees and job applicants, outlining what data they collect and how the data is used.
2. First gender pay gap reporting deadline
Private- and voluntary-sector employers with 250 or more employees have until 4 April 2018 to publish their first gender pay gap report.
Similarly, specified public-sector employers with 250 or more employees are required to publish their first gender pay gap reports by 30 March 2018.
3. Minimum wage rates increase
The national living wage for workers aged 25 and over will increase to £7.83 per hour on 1 April 2018.
Statutory rates
Other national minimum wage rates will also increase, with rates rising to £7.38 per hour for workers aged 21 to 24, to £5.90 per hour for workers aged 18 to 20 and to £4.20 for workers aged 18 who are no longer of compulsory school age.
The apprentice minimum wage rate will rise to £3.70 per hour and the accommodation offset will increase to £7.00 per day.
4. Statutory family pay amounts uprated
The weekly amount for statutory family pay rates will increase to £145.18 on 1 April 2018. This rate will apply to maternity pay, adoption pay, paternity pay, shared parental pay and maternity allowance.
5. Brexit preparations underway
Employers and workers were relieved to hear of the Government’s initial agreement with the European Commission. The terms protect the rights of EU citizens who currently reside in the UK to live, work and study in the UK following Brexit.
The announcement provides employers with more certainty as they continue to develop their contingency plans around Brexit. The agreement does not relate to the ability of new EU workers to migrate to the UK to work after Brexit.
As such, employers in sectors that rely on considerable inflows of European workers are still waiting for confirmation of immigration arrangements following withdrawal from the EU.
Key considerations likely for 2018;
1. GDPR comes into effect
The General Data Protection Regulation (GDPR), which updates and harmonises data protection law across the EU, will come into effect on 25 May 2018 for all EU member states, including the UK.
Data protection policy
Organisations will be conducting data audits and policy reviews in the lead up to next May, to ensure that their data protection practices are GDPR compliant.
Many employers will need to issue new or updated privacy notices to employees and job applicants, outlining what data they collect and how the data is used.
2. First gender pay gap reporting deadline
Private- and voluntary-sector employers with 250 or more employees have until 4 April 2018 to publish their first gender pay gap report.
Similarly, specified public-sector employers with 250 or more employees are required to publish their first gender pay gap reports by 30 March 2018.
3. Minimum wage rates increase
The national living wage for workers aged 25 and over will increase to £7.83 per hour on 1 April 2018.
Statutory rates
Other national minimum wage rates will also increase, with rates rising to £7.38 per hour for workers aged 21 to 24, to £5.90 per hour for workers aged 18 to 20 and to £4.20 for workers aged 18 who are no longer of compulsory school age.
The apprentice minimum wage rate will rise to £3.70 per hour and the accommodation offset will increase to £7.00 per day.
4. Statutory family pay amounts uprated
The weekly amount for statutory family pay rates will increase to £145.18 on 1 April 2018. This rate will apply to maternity pay, adoption pay, paternity pay, shared parental pay and maternity allowance.
5. Brexit preparations underway
Employers and workers were relieved to hear of the Government’s initial agreement with the European Commission. The terms protect the rights of EU citizens who currently reside in the UK to live, work and study in the UK following Brexit.
The announcement provides employers with more certainty as they continue to develop their contingency plans around Brexit. The agreement does not relate to the ability of new EU workers to migrate to the UK to work after Brexit.
As such, employers in sectors that rely on considerable inflows of European workers are still waiting for confirmation of immigration arrangements following withdrawal from the EU.
Significant Employment Law changes anticipated for 2017
Significant employment law changes are anticipated for 2017, amid the ongoing uncertainty resulting from the Brexit referendum
Large compliance projects for data protection and gender pay gap reporting will dominate the HR agenda in 2017. Employers are likely to see costs increase as the apprenticeship levy and additional fees for sponsoring foreign workers are introduced, and tax savings for employee benefits are significantly reduced.
Employers will also continue to deal with the implementation of restraints to public-sector exit payments and new trade union balloting rules in 2017.
1. General Data Protection Regulation compliance efforts underway
Although the EU General Data Protection Regulation (GDPR) does not come into force until May 2018, the scope of the changes under the new Regulation means that preparing for the GDPR will be high priority for employers in 2017.
Employers will need to carry out audits of employee personal data that they collect and process to ensure that it meets GDPR conditions for employee consent.
New governance and record-keeping requirements mean that employers will also have to create or amend policies and processes on privacy notices, data breach responses and subject access requests.
As the GDPR will come into effect before the UK exits the EU, organisations that are not compliant by May 2018 risk fines of up to €20 million or 4% of annual worldwide turnover, whichever is higher.
2. Gender pay gap reporting begins
Private-sector, voluntary sector and public-sector organisations with 250 employees or more will be required to publish gender pay gap information for the first time.
Employers will be obliged to release 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.
Gender pay gap regulations for private and voluntary sector employers are still in draft form but the deadline for the first report is expected to be 4 April 2018, based on pay and bonus data from 2016/17.
Reporting requirements for public-sector employers are expected to mirror private-sector timelines and requirements.
3. Apprenticeship levy on large employers introduced
Employers with an annual payroll of more than £3 million will be required to pay a 0.5% levy on their total pay bill starting on 6 April 2017.
Large employers will be able to access levied amounts, plus a government top-up of 10%, to fund apprenticeships from accredited training providers.
4. Salary-sacrifice schemes significantly restricted
Employers may need to reconsider their benefit offerings as tax savings through many salary-sacrifice schemes will be abolished from 6 April 2017.
Schemes related to pension savings (including pensions advice), childcare, cycle-to-work and ultra-low emission cars will not be affected.
Schemes in place prior to April 2017 will be protected until April 2018, while arrangements related to cars, accommodation and school fees will be protected until April 2021.
5. Changes to rules for employing foreign workers
Employers sponsoring foreign workers with a tier 2 visa will be required to pay an immigration skills charge of £1,000 per worker (£364 for small employers and charities) beginning in April 2017. The immigration skills charge will be in addition to current fees for visa applications.
In April 2017, the minimum salary threshold for “experienced workers” applying for a tier 2 visa will also increase to £30,000. New entrants to the job market, and some health and education staff will be exempted from the salary threshold until 2019.
6. Restraints on public-sector exit payments still expected
More local authority resources
Redundancy rights
Transfer of undertakings
Restrictions on public-sector exit payments, which had been expected to come into force in 2016, are still anticipated, although their implementation dates have not yet been confirmed.
Exit payments will be capped at £95,000 when public-sector employees leave their roles, including as a result of redundancy or voluntary exit.
Employees earning over £80,000 will also be required to repay exit payments if they return to any public-sector role within 12 months.
7. National minimum wage changes aligned
Statutory rates
Check current and future statutory rates for maternity pay, paternity pay, adoption pay, shared parental pay and sick pay.
Cycles for national minimum wage increases – including the national living wage – will be aligned, with the next round of changes taking effect on 1 April 2017.
The next increase will see the national living wage for staff aged 25 or over rising to £7.50.
8. Trade union balloting changes to be implemented
Employers await the implementation date for new balloting requirements under the Trade Union Act 2016.
Under the rules, a successful vote for strike action will require a 50% minimum turnout and a majority vote in favour of industrial action.
Industrial action in important public services will require a strike vote of 40% of all eligible voters.
Top FIVE Employment Case Law 2016
A round up of five significant employment law decisions that have been made so far this year, and a look at five more important judgments expected before the end of 2016.
Top FIVE Employment Law Cases in 2016
So far in 2016, there have been notable employment law cases on: holiday pay; childcare vouchers; social media at work; fraudulent sick leave; and reasonable adjustments for disabled people.
1. Commission in holiday pay
Lock and another v British Gas Trading Ltd (No.2) (EAT)
This Employment Appeal Tribunal (EAT) decision is the latest in a long line of cases on how employers should calculate holiday pay.
The EAT agreed with the employment tribunal that the Working Time Regulations 1998 can be interpreted to require employers to include a worker’s commission payments in the calculation of his or her holiday pay.
The case went to the Court of Appeal and was heard on 11 July 2016. The Court of Appeal judgment is awaited.
2. Childcare vouchers during maternity leave
Peninsula Business Services Ltd v Donaldson (EAT)
HM Revenue & Customs (HMRC) advice has traditionally been that it is unlawful for an employer to make the suspension of childcare vouchers scheme membership during maternity leave a prerequisite of joining.
Official HMRC guidance stated that “non-cash benefits, such as childcare vouchers that can be used only by the employee and are not transferable…must continue to be provided during ordinary maternity leave and additional maternity leave”.
Peninsula’s childcare vouchers scheme was the subject of a legal challenge because its scheme requires employees to agree to suspend their membership during maternity leave.
An employment tribunal decision that Peninsula’s childcare vouchers scheme was discriminatory was overturned by the EAT. The EAT found that employers that make deductions from an employee’s salary in return for childcare vouchers do not have to continue to provide the vouchers during maternity leave.
3. Monitoring employees’ social media
Barbulescu v Romania (ECHR)
In this Romanian case, the European Court of Human Rights (ECHR) examined the scope of employees’ right to a private life in relation to social media activity.
An engineer who was dismissed for using Yahoo Messenger to chat with his family, as well as professional contacts, challenged his employer’s actions as a breach of the European Convention on Human Rights.
However, the ECHR held that the employer’s actions were justified because it was seeking to verify that the employee was using his work computer and social media account for work purposes only.
This case will now go to the ECHR’s Grand Chamber. The hearing is scheduled to take place on 30 November 2016.
4. Misconduct dismissal for “pulling a sickie”
Metroline West Ltd v Ajaj; Ajaj v Metroline West Ltd (EAT)
This case provides a valuable recap for employers that suspect that an employee is faking illness.
The EAT affirmed that an employee who makes up, or exaggerates the effects of, an injury or illness to take fraudulent sick leave is fundamentally breaching the implied term of trust and confidence and can be dismissed for misconduct.
This case reiterates for employers that “pulling a sickie” is a misconduct, rather than a capability, issue. This means that a dismissal for fraudulent sick leave must be based on reasonable grounds, following a reasonable investigation.
5. Reasonable adjustments for disabled people
Carreras v United First Partners Research (EAT)
When considering the duty to make reasonable adjustments, employers need to pay particular attention to disabled workers’ hours of work.
In this case, the disabled employee believed that he was disadvantaged because there was an expectation in his workplace that employees work late, even though there was no strict requirement to do so.
In upholding the reasonable adjustments claim, the EAT held that working late does not have to be presented as an instruction to cause a disadvantage.
In practice, workplaces can put pressure on employees to conform, even if there is no written rule or direct management instruction.
Top FIVE Employment Law decisions still to come in 2016
Later this year, we are expecting further case law on whistleblowing; equal pay; religious dress; employment status; and indirect discrimination.
1. Whistleblowing
Chersterton Global Ltd (t/a Chestertons) and another v Nurmohamed (EAT)
The EAT held that allegations about accounting malpractices that affected the bonuses and commission of 100 senior managers were made in the reasonable belief that they were in the public interest.
The Government changed whistleblowing laws in 2013 to provide that a disclosure is not protected unless the employee reasonably believes that the disclosure is being made “in the public interest”.
This was to prevent workers using the legislation to make protected disclosure claims in relation to complaints about their employment contracts.
However, the EAT in Chesterton set a low bar for the “public interest” test, with a worker whose contract is potentially being breached able to raise concerns about the issue as long as the worker reasonably believes that it is “in the public interest”.
The Court of Appeal is expected to hear the appeal in this important whistleblowing case on 11-12 October 2016.
2. Equal pay in the private sector
Brierley and others v Asda Stores Ltd (employment tribunal)
Around 7,000 claimants are bringing a group equal pay claim against Asda in the employment tribunal.
The claimants – both male and female – are seeking to compare their jobs in Asda retail stores with the jobs of colleagues who work in distribution centres.
The employees contend that historically work done in the retail stores has been perceived as “women’s work” and thought to be worth less than work in the distribution depots, which was traditionally viewed as men’s work.
Asda’s application to have the employment tribunal proceedings stayed indefinitely, compelling the claimants to pursue their case in the High Court, has been comprehensively rejected by the Court of Appeal.
This means that this large equal pay case, which is unusual because it is against a private-sector employer, will continue to proceed through the employment tribunal system.
3. Religious dress in the workplace
Bougnaoui and another v Micropole Univers; Achbita and another v G4S Secure Solutions NV (ECJ)
Perhaps the biggest employment case law controversy of 2016 so far came with the Advocate General’s opinion in Achbita on when employers can ban religious dress, including Muslim headscarves (hijabs).
The Advocate General in the Belgian reference in Achbita suggested that an employer can ban a Muslim woman from wearing an Islamic headscarf on the basis of maintaining its religious and political neutrality.
However, another Advocate General in the French reference in Bougnaoui thought that an employer cannot have a blanket ban on religious dress purely because neutrality is required or a client or customer objects.
The full European Court of Justice (ECJ) judgments in both cases will decide which Advocate General is right. No date has been set for the decisions.
4. Employment status of Uber drivers
Aslam and others v Uber BV (employment tribunal)
Further ahead: employment law decisions due in 2017
R (on the application of Unison) v Lord Chancellor
and another Final legal challenge to employment tribunal fees expected to be heard in Supreme Court in late 2016, with judgment due in 2017.
Chief Constable of West Midlands Police and others v Harrod
and others Court of Appeal hearing due to take place on practice of police forces requiring police officers to retire “in the general interests of efficiency”. Hearing scheduled for 31 January/1 February 2017.
BT Managed Services Ltd v Edwards and another
Permission has been granted for an appeal in this TUPE case about whether or not a permanently incapacitated employee transfers. The case is listed to be heard on 16 or 17 May 2017.
The legal challenge by Uber drivers, who are regarded by Uber as self-employed, is a high-profile employment law case in 2016.
The test employment status case will determine whether Uber drivers are self-employed or workers.
If they are found to be workers, Uber would have to provide its drivers with basic workers’ rights, such as the national minimum wage and holiday pay.
The employment tribunal hearing began on 20 July 2016.
5. Indirect discrimination
Essop and others v Home Office (UK Border Agency);
Naeem v Secretary of State for Justice (Supreme Court)
In Essop, the Court of Appeal held that it is necessary in indirect discrimination claims for the claimant to show why the provision, criterion or practice has disadvantaged the group and the individual claimant.
In Naeem, the Court of Appeal held that the existence of a non-discriminatory reason for Muslim prison chaplains being paid less than their Christian counterparts defeated an indirect discrimination claim.
The appeals in Essop and Naeem are expected to be heard together in the Supreme Court later in 2016.
What will Brexit mean for UK Employment Law?
Now that the country has voted to leave the European Union, one of the burning questions in the workplace is, what will happen to the significant body of employment law that derives from Brussels? Over the past decades, EU directives have affected workers’ rights across the economy. For individual rights, employment protection legislation ranges from working time and annual holidays, rights for women and family-friendly policies, to anti-discrimination legislation and ‘atypical’ workers. Collective rights can be grouped under the core areas of collective redundancies and Transfer of Undertakings (Protection of Employment) Regulations [TUPE], European Works Councils, and information and consultation.
HR professionals are wondering how the workplace will be affected when Article 50 is triggered and the UK Government embarks on negotiations to structure a new relationship with the EU. Following the ‘leave’ vote, in theory the field could be open for a government to amend employment law if it could gain parliamentary approval. However, in reality the legal framework under which EU-derived employment law is transposed into UK law is complex and will not be straightforward to dismantle, even if there is the political will to do so. Also, nothing will change in the short-term.
A complex picture
Typically, European law is initiated in Brussels through directives and, once agreed, transposed into national legislation across all of the Member States. EU-derived law has been incorporated into UK law using a range of legal approaches including secondary legislation under the European Communities Act 1972, such as TUPE, as well as through standalone acts of Parliament, such as the Equality Act 2010.
The Working Time Directive is one of the most high-profile elements of EU-derived law affecting employment – before it was transposed into UK law, UK workers did not have a statutory right to paid annual holiday. The Directive ensured that all workers should be entitled to at least 20 days’ paid annual holiday, but the UK Government increased this entitlement to 28 days, including bank holidays. This is a perfect example of how the UK Government has chosen to ‘gold-plate’ some aspects of EU law, providing more generous provision for UK workers.
Further, one of the other main provisions of the Working Time Directive – that a worker’s working week would be limited to 48 hours – is already subject to an opt out in the UK. This Directive alone illustrates the complexity of how the UK transposes different aspects of EU law and how the wider domestic context influences its interpretation. For instance, successive governments have promoted family-friendly provision in workplaces and it’s hard to imagine a policy shift that aims to undermine this direction of travel in relation to EU-derived regulation.
A leap into the unknown
Any analysis of what the future holds for EU-derived employment law is based on speculation, and reliable commentary will have to wait until we see what appears on the negotiating table. Ultimately, any changes to workplace rights will depend on the shape of the political and economic relationship that the UK negotiates with the EU. However, trade agreements that would allow the UK continued access to the single market or joining the European Economic Area, like Norway, could require the UK to still accept the majority of EU regulations. Further, there will be legal and practical challenges associated with any attempt to unravel EU-derived requirements from non-EU-derived requirements, especially where case law has drawn on domestic courts’ interpretation of EU Directives and on European Court of Justice (ECJ) rulings.
Perhaps less will change than imagined
Analysis by legal experts before the ‘Brexit’ vote concludes that very little would change: EU-derived law is so embedded in UK law that it would be very complex to unpick, and would typically require new legislation. As already emphasised, what happens to UK employment law ‘will depend upon how the Government tries to extricate itself from the EU’, says the article: ‘If the Government simply repealed the European Communities Act, those regulations passed under it like TUPE would probably fall away, while freestanding acts of Parliament, such as the Equality Act, would remain in force. ‘A more realistic approach following an exit from the EU would be to maintain the status quo and start addressing particular laws individually over time; this could be by repealing them or merely tinkering.
There is also the important question of case law, and what would happen to precedents already set by the Court of Justice of the European Union (CJEU) and European Court of Justice (ECJ).
‘On leaving the EU, the ECJ would no longer have jurisdiction and its future decisions would not be binding on UK courts. It seems likely, however, that if we retain any laws originating from the EU (which is probable) our courts would still take account of future ECJ judgments as persuasive, albeit not binding, when ruling on those laws. In that case, the ECJ would continue to exert an appreciable influence.’ CIPD
Overall, with the major caveat that what happens to EU law depends on the future negotiating agenda, there is more likely to be a tinkering with specific areas which have been less popular with UK employers, such as the Agency Workers Regulations, the cap on discrimination payments, collective redundancy consultations and aspects of the Working Time Directive. We should remember that, on the whole, employers are not opposed to most aspects of EU legislation – when we surveyed CIPD members 10 years ago, the main areas that proved less popular were those relating to agency workers and working time.
CIPD June 2016
Floranova/Vegetalis Ltd
We have used Lorna Alkhersan for a wide range of HR services for over 5 years. We are a medium sized company that does not have the resource to employ a dedicated HR individual so have used Lorna to work alongside our Directors to assist in various HR tasks such as the following:
• Creating an up to date staff handbook
• Reviewing and significantly improving contracts of employment (for existing staff, new staff, temps and casual employees)
• Disciplinary and dismissal management
• Helping to implement restructures, redundancies
Lorna’s advice has ensured that the Company has achieved its HR objectives with the minimum of risk to itself. We have no hesitation in recommending Lorna to any company looking to outsource or bolster their HR programme..– Tyvian Stabler, Director of Finance, Floranova/Vegetalis Ltd