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A year in review and what we expect in 2018 in Employment Law

By December 22, 2017June 28th, 2021Employment, For Business

This year has been a busy year when it comes to Employment Law. We expect 2018 to be the same. Here’s a run down of some of the big cases from 2017 and what 2018 has in store.

What to expect in 2018

EU General Data Protection Regulation

This is likely to be the biggest issue for HR practitioners to tackle in 2018 as everyone prepares to comply with the new rules governing the processing of personal data in readiness for GDPR coming into force on 25th May 2018. In addition to this, the UK Government is also proposing to replace the Data Protection Act 1998 with a new Data Protection Bill which is due to be debated at a third reading in the House of Lords on 17th January 2018, at which point it should progress to the House of Commons.

The Gig Economy continues to create uncertainty for businesses with the Supreme Court due to hear the case of Pimlico Plumbers Ltd –v- Smith on 20th and 21st February 2018 following the Court of Appeal’s decision holding that a plumber was a worker (not a self-employed contractor) for the purposes of the Employment Rights Act 1996 and Working Time Regulations 1998 as well as an employee within the extended meaning of that term in the Equality Act 2010.

Mandatory Gender Pay Gap Reporting

The Regulations came into force on 6th April this year requiring employers to publish an annual report containing data on its gender pay gap. The first reports for large private employers are due by 4th April 2018.

Key Cases

We are also expecting Judgment in a number of important and interesting cases including:-

Porras Guisado –v- Bankia SA & Others from the European Court of Justice. Advocate General Sharpston has indicated that in her opinion pregnant workers should be protected from dismissal even before they have informed their employer of the fact they are pregnant. In the UK, it is generally accepted that a woman cannot benefit from statutory protections on the grounds of her pregnancy (ie, not to suffer discrimination or dismissal) until her employer becomes aware of her pregnancy. This decision will therefore be of great interest to many.

In March, the Court of Appeal is due to hear the case of Focus Care Agency Limited –v- Roberts & Others where it will determine the correct approach when deciding whether employees who sleep in, in order to carry out duties if required, engage in “time work” for the entire duration of their night shift or alternatively whether they are only entitled to be paid the national minimum wage for periods when they are awake and carrying out relevant duties.

Review of 2017

Gig economy companies criticised for “almost unintelligible” employment contracts

The dynamics at play within the ‘gig economy’ and the legal definitions of relationships between companies like Uber and Deliveroo and their drivers/riders has been among the most high profile employment law stories of the past year and the same could well be true of 2018. The companies insist that their frontline operatives are effectively self-employed but the basis for that claim is being widely disputed and coming under increasingly close legal scrutiny in the UK and across Europe. Read more.

Gender pay disparity reports reveal “alarming gaps”

Companies with more than 250 employees on their payrolls are being legally obliged to report on the scale of any pay disparities between men and women within their workforces. The relevant regulations are being steadily phased in on an annual basis but early indications are that there are some “alarming gaps” in pay at big companies, as Sarah Scholfield outlines in this article posted on our website back in April. .

Are ‘sleep in’ workers working or sleeping and should they be paid National Minimum Wage?

A number of interrelated legal cases emerged in the first half of 2017 with pertinence to the question of whether employees should be paid National Minimum Wage (NMW) while they’re on ‘sleep in’ shifts. The key issue at hand was whether employees should be considered to be actively working or simply being ‘on call’ while engaged on a shift that allows them to sleep at certain times and at specific locations. The Employment Appeals Tribunal decided that there is no one-size-fits-all answer to the questions posed as we explain here back in June.

Shared Parental Leave – Do offers made to women need to be matched if they’re transferred to male partners?

A case put before the Tribunal in early summer 2017 brought into sharp focus the question of whether enhanced maternity packages offered to female employees should be fully transferable to their male partners when maternity leave is being shared. Sarah Scholfield outlined the details of the case and the most important lessons for employers. Read more.

Should pregnant workers be protected from dismissal even if their employers don’t know they’re expecting?

The EU’s Pregnant Workers Directive protects pregnant employees from dismissal from the day that they inform their employers of their situation until they have returned from maternity leave. However, the ECJ has recently been considering the question of whether the same protections should be applied even where employers are yet to learn of their employee’s changed circumstances after a case involving a Spanish bank worker came to court in Catalonia. Read more.

Window salesman’s claim for backdated holiday pay raises big questions for employers paying workers on commission

A case brought before a number of different courts and tribunals this year raised some potentially very significant questions for all manner of businesses which pay members of their workforces on a commission-only basis. The case involved a former salesman for the Sash Windows Company who was let go at the age of 65 and subsequently alleged age discrimination and to be owed years’ worth of holiday pay he never received. Read more.

Russell Brown

Author Russell Brown

Russell is a Partner and Head of Glaisyers' Employment Team.

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