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.
|5 April 2015
- New system of Shared Parental Leave (SPL) in place, for parents
of children due to be born or placed for adoption on or after 5
- Removal of the requirement for 26 weeks' service before
employees become entitled to adoption leave; introduction of a new
right for both single and joint adopters to attend adoption
- Existing parental leave regime extended to parents of children
aged between five and 18.
- Extension of existing adoption rights to individuals fostering
a child under the "Fostering for Adoption" scheme.
|6 April 2015
- Implementation of amended record-keeping, returns and penalties
provisions under the Finance Bill 2014, intended to combat false
self-employment through service companies will apply (with the
first return due by 5 August 2015).
- Travel expenses paid to councillors by their local authority
will be exempt from income tax and employee NICs.
- No employers' national insurance contributions will be payable
on earnings below the upper earnings limit paid to apprentices who
are under the age of 25.
- Various measures will be introduced to simplify the taxation of
expenses (see paragraphs 1.162, 1.251 and 2.136 of the 2014
Autumn Statement and Policy Costings pages 22 and 23).
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
- 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.
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.
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.