Key employment law developments: what to expect in 2015

Although the government's 'employment law review' is now drawing to a close, and there will be a lull in major policy announcements in the run up to the election, there are still plenty of changes on the cards for the coming year (and beyond…).  So, unwrap your 2015 diary - Sarah Maddock sets out key forthcoming employment law developments, including those recently announced in the Autumn Statement.

In the pipeline…

• Zero-hours contracts. The government plans to prohibit employers from restricting zero-hours workers from working for other businesses. The legislation implementing this policy forms part of the Small Business, Enterprise and Employment Bill 2014-15, which has now reached committee stage and is expected to be finalised before the dissolution of parliament on 30 March 2015.
• Acas Code and the right to be accompanied. Following the decision in Toal v GB Oils Limited, which confirmed that the choice of companion at a disciplinary / grievance hearing is an absolute right, Acas have consulted on revisions to their Code of Practice on Disciplinary and Grievance Procedures. The consultation closed on 7 January 2014, so we expect the finalised revised Code to be published next year.
• Public sector exit payments. Individuals earning over £100,000 who leave public sector employment and then return to work for the same organisation, or another organisation within the same sub-sector, within 12 months will be required to repay any exit payment.  These proposals will be implemented in the Small Business, Enterprise and Employment Bill, no later than April 2016.

Cases on appeal

Redundancy / collective consultation

• In USDAW v Ethel Austin Limited (the 'Woolworths' case), the Employment Appeal Tribunal (EAT) dramatically extended the scope for collective consultation obligations to bite.  Please click here for a summary of the decision. The appeal against this decision was heard on 22 January 2014 but has been stayed, pending a reference to the Court of Justice of the European Union (CJEU). The CJEU heard the case on 20 November 2014 and the Advocate General is expected to publish their Opinion on the case on 5 February 2015.  The Advocate General's Opinion is not binding, but is usually followed by the CJEU. An Irish case, on the same issue, Lyttle v Bluebird and others was joined to the USDAW case and was also considered at the November hearing. We understand that collective consultation claims are currently being stayed, pending the CJEU's decision.
• We are also awaiting a decision from the Court of Appeal in the case of United States of America v Nolan, which will determine when an employer must begin collective redundancy consultation (please click here to read our summary of the case). This case considered when the obligation to consult collectively arises: namely, is it when an employer is proposing to make a strategic, business or operational decision that will foreseeably lead to collective redundancies; or only once the employer has made that strategic decision and is proposing consequential redundancies?  The European Courts declined to respond to a question referred to it by the Court of Appeal on the trigger point for collective redundancy consultation, so the case returned to the Court of Appeal and a further hearing has been ordered.
  

Holiday pay

• On 4 November 2014, the Employment Appeal Tribunal ruled, in Bear Scotland v Fulton and others, that holiday pay should include non-guaranteed overtime which is normally worked. Please click here to read our article on this case.  It has been reported that the employees in this case will not be appealing this decision; although an employer appeal has not yet been ruled out.
• The case of Lock v British Gas Trading Limited and others will deal with the question of whether a worker, whose pay comprises basic pay and sales-related commission, should receive holiday pay of more than just basic pay. On 22 May 2014, the CJEU held that holiday pay must include commission where that is part of remuneration. The case will now return to the tribunal to consider whether our domestic legislation can be interpreted in line with the CJEU's decision and, if it can, the level of holiday pay to which the claimant was entitled.  The hearing is expected to take place on 4 February 2015.

Employment Tribunal Fees

Following the failure of the initial Unison application for judicial review of tribunal fees, fresh proceedings were brought and heard on 21 and 22 October 2014. Please click here to see our New Round-up article with details of today's dismissal of these proceedings.

Compensation cap

An application for judicial review of the statutory cap of one year's salary for unfair dismissal compensation was dismissed in May 2014, and an appeal was heard between 25 July and 24 October 2014. The application was made on the basis that the statutory cap of one year's salary in unfair dismissal cases is indirectly discriminatory on the ground of age, because older workers are more likely to be out of work for a longer period and therefore eligible for more compensation without the application of the statutory cap. The judgment has not yet been published.

Obesity and disability

Judgment is expected tomorrow, 18 December 2014, in the case of FOA, acting on behalf of Karsten Kaltoft v Billund Kommune, which considers whether discrimination on the grounds of obesity is prohibited by EU law. According to the Advocate General's opinion (which is often followed by the CJEU), there is no general principle of EU law prohibiting discrimination on grounds of obesity in its own right. However, in the Advocate General's opinion, severe obesity – which hinders a person's full and effective participation in professional life - may amount to a disability under the Equal Treatment Framework Directive.