2020 is shaping up to be a relatively busy year in the employment law arena.
A number of changes take effect on 6 April 2020.
- The right to a written statement of terms and conditions is being extended to workers as well as employees. Individuals will have to be given a statement of written terms at the start of their employment or engagement, not within two months of starting work as is currently the case. Statements must include a variety of new matters, including information about probationary periods, training and paid leave entitlements. Transitional arrangements mean that updated written statements do not have to be issued to existing employees as a matter of course.
- The period over which average holiday pay is calculated for employees without normal working hours or who have variable remuneration is being extended from 12 to 52 weeks.
- The "Swedish derogation" for agency workers will be repealed and temporary work agencies will have to confirm to relevant agency workers that they are eligible for pay-related equal treatment under the Agency Workers Regulations.
- The proportion of employees needed to request the creation of an information and consultation body will reduce from 10% to 2%.
The new right to two weeks' parental bereavement leave was also expected to come into force in April. However, draft regulations have not yet been published so it is possible that there will be a delay in implementation.
From April 2020 employers' NICs will be payable on termination payments in excess of £30,000.
The government confirmed last week that the IR35 changes are still expected to come into force in April, despite a Treasury review. The review will focus on how to ensure "smooth implementation" of the reforms, not on whether they should go ahead at all, and is due to end in mid-February.
According to the Queen's Speech there will be an Employment Bill later in the year, which is expected to include:
- A right to request a more predictable contract for all workers (but which will be particularly relevant to those working on variable or zero hour contracts).
- Additional protection against discrimination for pregnant workers and new parents. This will presumably take the form of a right to be offered a suitable alternative vacancy if a woman is at risk of redundancy while she is pregnant and for all parents if they are at risk of redundancy shortly after they return from maternity or adoption leave.
- A new right to neonatal leave for parents whose babies require neonatal care after birth and a right to one week's leave for unpaid carers.
- The introduction of flexible working "by default", although it is not clear what form this will take.
The Queen's Speech also included references to a national disability strategy. We may see the introduction of a right to request workplace modifications for employees with a health condition that does not amount to a disability as part of this. Such a duty would have significant implications for how employers handle sick and absent employees.
If the EU Withdrawal Bill passes and the UK leaves the EU at the end of January, we will not see any Brexit-related employment related changes this year. During the transitional period that ends on 31 December 2020 the UK will continue to apply EU law and CJEU decisions will continue to be binding on UK courts and tribunals.
The government carried out two consultation exercises in relation to sexual harassment in 2019. Although it is unclear whether this area is a current political priority, we could see legislation in relation to the use of confidentiality provisions when settling harassment or discrimination complaints and the re-introduction of protection against third party harassment, amongst other things.
Supreme Court decisions
There will be several important Supreme Court decisions this year, dealing with:
- An employer's vicarious liability for data protection breaches by a "rogue employee" (Wm Morrisons Supermarkets v Various Claimants).
- Whether paying enhanced maternity pay but only statutory shared parental pay is direct or indirect sex discrimination (Ali v Capita Customer Management Ltd; Hextall v Chief Constable of Leicestershire Police).
- Worker status (Uber BV v Aslam).
- The extent of an employee's ability to compare themselves with employees engaged on common terms of employment for equal pay purposes (Asda Stores Ltd v Brierley).
Other cases relate to minimum wage entitlement for sleep in shifts and the burden of proof in discrimination claims. A number of cases relating to working time holiday entitlement may also reach the Supreme Court if they receive permission to appeal.