Posted on Jan 05, 2016 in Employment by Debbie Fellows
As we all get used to dating documents 2016 and Festive excesses become a distant memory, it’s a good time to consider the last year and prepare for the new. In January 2015, we made various predictions and a year on, here’s the update…
Holidays (the saga continues)
Last year, we were expecting further aftershocks following the decisions relating to holiday pay in 2014. Twelve months on, the law has moved on a bit but the key case (Lock v British Gas) is still making its way through the courts. The Employment Appeal Tribunal heard the matter in early December 2015 so we await their decision.
In June 2015, the case of Patterson v Castlereagh Borough Council appeared to provide clarity on whether voluntary overtime should be included in the calculation of holiday pay. The Court of Appeal in Northern Ireland indicated that there was “nothing in principle” preventing their inclusion and therefore found in favour of the Claimant. At first glance this decision appeared significant but on closer examination it can be seen that the point was not in fact contested by the Respondent and the decision is not binding in Scotland, England or Wales. It may however foreshadow where the law will go eventually.
Right at the end of 2015, a judgement was made by the Court of Session (The Advocate General for Scotland v Barton) on a technical point relating to how you interpret UK law in light of EU provisions. Its effect could be far reaching as one view would be that it undermines the key legal basis for the decision in Bear Scotland (which was the big case of 2014 setting out the law on holiday pay / overtime). Bear Scotland sought to reconcile a conflict between UK law and the EU provisions on how holiday pay should be calculated where employees worked guaranteed or non-guaranteed overtime. It did this essentially by adding words into the UK law. The extent to which a court can do this purposive interpretation (without distorting the actual statutory provisions) is an issue of ongoing contention as seen in Barton. If the legal basis for the Employment Appeal Tribunal coming to their decision in Bear Scotland is undermined, it could throw the law in this area back into contention.
We expect 2016 will bring further clarity in the law but probably not a final definitive position.
We were hoping for clarity on whether if a business has job losses at different locations, the number of redundancies should be looked at cumulatively across the business or not. The answer would dictate whether the additional duties relating to collective consultation would be triggered.
In 2015, the European Court of Justice gave us an answer and reversed an earlier decision which affected the former workers of Woolworths. It held that an employer does not need to look at the job losses across a whole organisation. Each location can be considered separately. However if you are considering redundancies across multiple sites you should ensure you take legal advice so as not to inadvertently fall foul of the collective redundancies rules.
On the horizon, the Court of Appeal will consider the issue of when the duty to start collective consultation is triggered – is this at an earlier stage when redundancies may be just one of a number of different options being considered by an employer? This has been an issue that has concerned employers for many years so hopefully we will clarity on the law. Fingers crossed!
Things in the pipeline (still!)
The UK government's "Fit For Work" Assessment Programme was due to become mandatory in May 2015. It remains a voluntary scheme where employers can seek a free medical assessment of an employee who has been absent for more than 4 weeks. Certainly anecdotally from our clients, there does not appear to have been significant uptake and whether an employer can use it depends on the consent of the employee.
The staging dates for auto-enrolment continue to pass and the new system will cover the vast majority of employees by the middle of this year. The opt-out rate seems to be low but the full effect of having employees automatically contributing into pensions schemes will not be clear for many years. If you have a staging date in 2016 and need advice on the HR issues, please contact us.
Later this year we hope to get clarity on what is meant by “in the public interest” in terms of protected disclosures. As there are significant protections for whistleblowers, being able to argue that an employee has or has not made such a disclosure is very important. The courts so far have kept the hurdle of what is actually “in the public interest” low. This may change in 2016, with a case relating to whether a complaint about a bonus scheme (affecting a group of employees in a private company) met the test.
2015 saw the introduction of shared parental leave. While logistically and administratively complex, the new system seems to have been adopted without too many teething problems.
A majority Conservative government was returned in the General Election in May, but Scotland saw a fundamental change in representation with the SNP winning all but a handful of seats. The UK government has sought to take forward its manifesto commitments regarding altering strike laws. These have proved to be controversial. The Scottish Government is currently seeking an exemption to the legislation for Scotland. Whether 2016 will see an increase in industrial unrest and conflict between Westminster and the devolved governments is yet to be seen, although it certainly seems likely particularly in the public sector.
In April 2016, the National Living Wage comes into force which will see a new minimum hourly salary of £7.20 for employees aged 25 or over.
Changes just around the corner?
The Scotland Bill (following on from the 2014 referendum) is currently in the House of Lords, but the effect in terms of employment law may be minor. That said, the one power that is to be devolved to the Scottish Parliament is in relation to the administration and management of employment tribunals. Will this lead to an overhaul of tribunal system and even the abolition of fees in Scotland? We wait to see, but if it does this could result in a very different system north of the Border and there has been some concern about jurisdiction shopping with claims being brought north of the border where the employer resides or carries on business in Scotland as well as elsewhere in the UK.
2016 may see the result of the Prime Minister’s renegotiation relating to the UK’s position in the EU. Depending on the result, there could be changes in employment law (most of the key rights, e.g. working time, holidays, discrimination) and then there is still the promised EU Referendum.
2016 could be a significant year for HR and employment law, especially in the context of the UK’s place in Europe. Its effect will most likely lead to much longer term consequences. In the shorter term, employers will still require to deal with the day to day matters involving and affecting its employees. As always, if you need help steering through the HR minefield, please contact any member of our Employment Law team who will be delighted to help. You can also keep up to date with developments by following the team on Twitter @ThorntonsEmpLaw
Debbie Fellows is a specialst Employment Law Solicitor. If you have queries about employment law matters please contact Debbie on 01382 229111 or email firstname.lastname@example.org
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