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Employment Law: What to Expect in 2018

2017 has widely been held as a year of uncertainty in the UK; from the surprise announcement of a snap election to the unforeseen subsequent impact of the same on Theresa May’s majority in the House of Commons, and from the glacial progress of Brexit negotiations to the unpredictable nature of the leader of one of the UK’s biggest allies (and his Twitter feed), the humble UK resident can barely have felt more unsure of the country’s future. So will 2018 provide the stability and certainty that has been so lacking for the past year? We provide below a summary of some of the bigger changes, whether absolutely certain or still in progress, that are likely to arise in the next 12 months.

General Data Protection Regulation

From 15 May 2018, these EU regulations will introduce new rules regarding the processing of personal data, which is currently governed by the Data Protection Act 1998 (“DPA”). The DPA is likely to be replaced by a new Act in readiness for the EU regulations. Given the likelihood that personal data will continue to be transferred between the UK and remaining EEA States in all sorts of trade activities, the fact the UK will not need to directly implement the EU regulations into UK law is unlikely to result in the DPA’s replacement being reviewed and significantly changed soon after Brexit.

Employment Status

In July last year, a review of modern working practices (the Taylor Review) led by Matthew Taylor, Chief Executive of the Royal Society of Arts, resulted in a report which made a number of recommendations regarding various areas of working practice, but most notably in respect of employment status issues.

The question of employment status, particularly regarding the “gig economy” (a labour market in which individuals are provided with short-term or freelance work, usually under regularised terms), has become a hot topic since the first instance decisions in cases against Uber, CitySprint and Pimlico Plumbers, swiftly followed by other high profile names such as Addison Lee and Deliveroo. Whilst in these cases the intention appeared to be that the drivers, couriers and plumbers were independent self-employed contractors, the decisions of the tribunals and courts blurred the lines, making those working in the gig economy more likely to be “workers” and therefore getting certain entitlements and protections, such as minimum wage, statutory holiday pay, and protection from unlawful discrimination.

The uncertainty surrounding employment status should be clarified to some degree by both the government’s response to the Taylor Review (and any subsequent bills) and the determination of further appeals in some of the above cases.

Gender Pay Gap Reporting

The requirement for large private and voluntary sector employers to publish a report on their gender pay gap figures has been approaching for some time, the initial consultation paper having been published in early 2016 and the subsequent regulations coming into force in April 2017. This Spring will see the first reports being published, and whilst most affected employers will already have compliance with their reporting requirements in hand, it will be interesting to see what steps those with particularly disproportionate figures (and, more generally, the UK government) will take to narrow the gender pay gap.

Upcoming cases of interest

The following issues are amongst those to be determined in some of the more high profile upcoming cases:

  • Was a Christian bakery guilty of direct discrimination against a gay man in refusing to bake him a cake bearing the slogan “Support Gay Marriage”? This case has been widely reported in the press, and will be considered by the Supreme Court after the Northern Ireland Court of Appeal determined that this had indeed been direct discrimination (though for different reasons than in the first instance decision);
  • The approach for deciding whether employees required to sleep-in, such as carers, are working (and so entitled to national minimum) during the whole night shift, including during sleep, is to be examined. No clear test has yet been established.a woman who had not yet informed her employer that she was pregnant could qualify for protection from dismissal. Whilst the case in question comes from Spain, the European Court of Justice’s decision on this issue would apply in the UK (at least until any corresponding law is changed post-Brexit). The Advocate General has given her opinion that such protection can apply even if the employer is not aware of the pregnancy. This seems particularly unfair on employers so it will be interesting to see the ECJ’s decision in light of that opinion;
  • The approach for deciding whether employees required to sleep-in, such as carers, are working (and so entitled to national minimum) during the whole night shift, including during sleep, is to be examined. No clear test has yet been established.

 

Brexit

Whilst nothing has yet been determined, and much will be subject to the outcome of negotiations between the UK and the EU, we do know that the Government intend to pass legislation that will effectively replicate the laws already in place that stem from EU legislation. This will allow the status quo to remain whilst the Government unravel the regulations in place and establish what needs to stay (particularly if continuing compliance with EU rules is a requirement of any trade deal) and what can be replaced.

Once the Government knows which laws can be removed, the next question will be what they should be replaced with. A Conservative government is likely to want to introduce legislation that favours businesses, but unions will undoubtedly make it difficult for rights that have applied for a long time (including many which were already in place before the UK joined the EU) to be watered down. The economic impact of Brexit, including the changes to immigration regulations, will invariably play a part in determining whether businesses need that additional assistance, but it possible even the end of 2018 will be too early to know how this will develop.

 

Matthew Cranton - Employment & Immigration Partner

 

This article was first published on 15 January 2018 as part of our Employment Law Update series. Register above to receive our updates as soon as they are published, directly to your inbox.

This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.