2020 Predictions: Employment law changes on the horizon

3. Removal of the Swedish derogation
Currently, employment businesses can pay agency staff - including holiday pay - at different rates, typically lower to those of equivalent permanent staff at the hiring company if the agency provides the agency worker with a permanent contract of employment with minimum requirements, and pays them a minimum amount for the periods between assignments.

From 6 April 2020, all agency workers will have a right to pay parity after 12 weeks working in the same role for the same hirer.

4. Revisions to section 1 statements (ie written terms and conditions of employment)
Currently only employees are entitled to a section 1 statement - so called because of the requirement under Section 1 of the Employment Rights Act 1996 - and it can be provided at any time within the first two months of employment.

From 6 April this right will be extended to workers and in either case it must be provided by no later than their first day of employment. There are further changes to the information which will need to be in the initial statement and information which can be provided in supplementary statement.

5. Revised National Minimum Wage (NMW) and National Living Wage (NLW) Rates
The Government has accepted the Low Pay Commission’s recommendations for the NLW and NMW. Therefore, as of 1 April 2020 (subject to parliamentary approval) the new rates will be as follows:

• The NLW for workers aged 25 and over will increase from £8.21 to £8.72 per hour;
• The NMW for 21-to 24-year-olds will increase from £7.70 to £8.20 per hour.
• The NMW for 18-to 20-year-olds will increase from £6.15 to £6.45 per hour.
• The NMW for 16-to 17-year-olds will increase from £4.35 to £4.55 per hour.
• The apprentice rate for those aged under 19 or in the first year of an apprenticeship will increase from £3.90 to £4.15 per hour.

6. Changes to the holiday pay reference period
Currently, the reference period for determining an average week's pay (for the purposes of calculating holiday pay) is 12 weeks for workers who do not work regular hours.

As of 6 April, the reference period will increase to 52 weeks, or the number of complete weeks for which the worker has been employed (if less than 52 weeks).

7. Threshold required for a request to set up information and consultation arrangements (I&C Agreements) is to be lowered
The Information and Consultation of Employees Regulations 2004 (SI 2004/3426) (ICE Regulations) set out a regime whereby UK employers may, and in some cases must, put in place I&C agreements governing how they will inform and consult their employees about economic and employment-related matters.

Currently negotiations for an I&C agreement can be initiated by the employer or by a written request by at least 10% of the employees (subject to a minimum of 15 and a maximum of 2,500). From 6 April 2020 this threshold will reduce to 2% of the total number of employees, subject to the existing minimum of 15 employees.

8. Parental bereavement leave and pay
The right to parental bereavement leave and pay is expected to come into force in April 2020. The right will allow parents of a child under the age of 18 who has died to take two weeks’ leave. It will be available to the birth parents or those with parental responsibility for the child and can be taken within 56 weeks of the child’s death, in a block of two weeks, or two blocks of one week. Employees will be entitled to take parental bereavement leave from the start of their employment but there will be a 26 week qualifying period for the right to parental bereavement pay. The government is expected to publish the regulations that will finalise the details for the introduction of these rights soon.

Forthcoming Cases

1. Various claimants v Wm Morrisons Supermarket (vicarious liability and rogue employees)
In 2013, a senior internal IT auditor employed by Morrisons downloaded employee payroll data for nearly 100,000 employees. Disgruntled following a disciplinary, he uploaded the data to a file-sharing website and sent it to several newspapers. Over 5,500 employees then issued claims against Morrisons who were held to be vicariously liable for the auditor’s misuse of private information and/or breaches of confidence.

On 6-7 November 2019 the Supreme Court heard Morrisons’ appeal and we are now awaiting their judgement.

The decision to hold Morrisons liable in these circumstances came as a surprise to both employers and lawyers alike. The case is of significant concern to employers as it leaves them potentially liable for the misuse of personal data by rogue employees even if they have taken all appropriate steps to comply with data protection legislation and even if the breach is motivated by the individual’s desire to harm the employer i.e. even if it aids them to achieve their aim.

Currently, the best advice to employers is to ensure they have appropriately secured personal data; that they continuously monitor and update such measures as guidance and technology develop; and that they take out adequate insurance cover for data protection breaches.

2. Royal Mencap Society v Tomlinson-Blake (pay for sleep-in workers)
The Supreme Court is due to hear an appeal on the above case on 12-13 February 2020.

The Court of Appeal decided that employees, who are required to sleep-in, to carry out duties if required, are only available for work rather than actually working. This means that they do not need to be paid the national minimum wage (NMW) when they are asleep, only when they are awake and working.

The Court of Appeal’s ruling was a relief for employers in the care sector in particular. If the Supreme Court allows the appeal by Unison, on behalf of Tomlinson-Blake, affected employers are likely to owe large sums in back-pay as well as penalties for failing to pay the NMW. For the care sector alone, it is estimated the cost could be circa £400m.

3. Uber BV and others v Aslam and others (employment status)
There have been a number of cases over the last couple of years looking at the issue of worker status in the gig economy across a variety of sectors: see for example our article.

One example of this trend is the Uber case. Uber unsuccessfully argued that drivers were independent contractors who had direct contracts with passengers and that Uber merely provided a platform to connect passengers with Uber drivers.

Instead, the Court of Appeal agreed that the drivers were workers whenever they had the app turned on, were ready and willing to accept work and were in the area in which they were licenced to work. The case has significant cost implications for Uber as well as other similar gig economy platforms. A worker, unlike a genuinely independent contractor, has basic rights including the right to holiday pay and the national minimum wage.

Uber’s final appeal will be heard by the Supreme Court on 22 and 23 July 2020.