As we near the end of the year we have been reflecting on what we feel the most important employment law developments have been in 2015. We have had a look at which of the stories on our website have been the most popular with our readers, and which topics we have received the most enquiries about from our clients.
In reverse order:
10. Shared Parental Leave
The new right to Shared Parental Leave was introduced in April and we ran a successful series of workshops in the spring to help employers prepare. It is still fairly early days for the new rights, but so far, as we predicted, the take up seems to be low. This may partly be due to the extremely complex rules around eligibility and notification, as well as the low pay. Our most recent article on shared parental leave can be found here.
You would think that in a piece of legislation called the Public Interest Disclosure Act, the question of public interest would have been one of the first points to be clearly established, but it definitely isn’t that simple! Since the law came into effect in 1999 the extent to which whistleblowing has to be in the ‘public interest’ has virtually gone full circle. Now we seem to be almost back where we started, which is that the requirement for public interest seems to be very limited indeed. Our recent article on the latest development can be found here.
8. Woolworths and collective consultation
As you may recall, last year one of the key cases involved the question of what an ‘establishment’ was for the purposes of collective redundancy consultation. This matters because if 20 or more employees are redundant at one establishment within a 90 day period there is a requirement to go through collective redundancy consultation. The decision in 2014 was that the words ‘at one establishment’ should be deleted, meaning that many more situations would potentially be caught by the collective redundancy rules. Fortunately for employers, the decision was overturned in 2015, meaning that (using the Woolworths example) each individual store would constitute a separate establishment. This meant that for any stores with fewer than 20 staff the requirement for collective consultation was not engaged. Our article on the latest judgment can be found here.
7. Sickness and holiday – carry forward
The long-running issue of sickness and holiday just will not go away, and this year the courts looked at the question of how long leave could be carried forward where an employee has been prevented from taking it due to their sickness absence. In the case of Plumb v Duncan Print Group, the Employment Appeal Tribunal said there could be an 18 month ‘expiry date’ on unused leave. Our article on the case can be found here.
6. Taxation of Termination Payments
This isn’t strictly speaking a 2015 development, as although changes have been proposed, no details have been announced yet as to what they will actually look like. Nevertheless, we have included this in our list because it is something that will have far-reaching implications for employers and employees. Our latest article on this can be found here.
5. Travel time for mobile workers
Organisations which employ mobile workers have been grappling with the latest development from the European Court in the Tyco case, which established that the first and last journey of the day do count as working time. This means that employers need to look carefully at their existing arrangements to ensure that workers are receiving sufficient rest breaks and daily and weekly rest, and also that their average working hours are within the weekly limit of 48 hours (unless the worker has opted out). Our article on the case is here.
4. National Minimum Wage – Travel time and sleep ins
Although these issues are not relevant to every organisation, for those who have staff at or near National Minimum Wage these can be ‘make or break’ matters. In this year these points came under scrutiny from HMRC and the courts. Our article can be found here, and our article on a subsequent development in relation to sleep ins is available here.
3. The National Living Wage
This was a surprise announcement by George Osborne in the Budget in July, and has huge implications for those in sectors with low margins, including retail, hospitality, charities and social care. Effectively the National Living Wage is a ‘premium’ on top of the National Minimum Wage for workers over 25, and it will take effect from 1 April 2016. More information can be found in our article here.
2. HR as an ‘improper influence’
The case of Ramphal v Department for Transport was one that caused great concern to our clients and contacts. In the case, the Employment Appeal Tribunal roundly criticised HR for having influenced the outcome of a disciplinary hearing, which has brought into question exactly how far HR can go in advising managers about the outcome of disciplinary and grievance matters. The case also highlights the fact that previous drafts of documents can be disclosable, and also that internal communication to and from HR to seek advice can form part of the evidence at Tribunal. Our article on the case is here.
1. Holiday pay – taking into account overtime, commission etc.
This was a big development towards the end of last year, and unsurprisingly this area of case law continued to dominate employment law in 2015 too. This is a key issue because it affects such a huge number of employers across virtually all sectors. July 2015 saw the introduction of a new rule limiting the backdating of any wages claims (including holiday pay) to a maximum of 2 years. We commented on the Patterson case (from Northern Ireland) where the Court of Appeal found that voluntary overtime should be taken into account in holiday pay if it is regularly worked (our article is available here). Our employer clients are understandably hungry for definitive law on how to deal with holiday pay cases, such as what reference period to use, and what types of overtime and commission are included – unfortunately it is likely to take quite some time for cases to work their way through the court system, so in the meantime it is best to take advice on the options available.
Do you agree with our list? What do you think the main issues will be for 2016? We would love to hear your feedback.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).