What to look out for in 2018
05 January 2018 #Data Protection
With 2018 newly arrived, it’s the ideal time to take a look at what’s in store for the world of business and its employees over the next year.
Data Protection Bill and General Data Protection Regulation
The biggest impact on companies this year is likely to come from the Data Protection Bill which is currently making its way through Parliament. It replaces the Data Protection Act 1998 and implements certain parts of the GDPR, as well as making sure the GDPR continues to apply post-Brexit.
The GDPR in a nutshell comes into force 25 May 2018 and imposes stricter requirements on organisations on the way in which personal data is collected, stored and used. There are also changes to the way in which subject access requests are handled, and heavier fines for non-compliance.
Another fraught area for employers revolves around worker status, which case law moving the goal posts constantly (see below). The government is also currently considering the findings of the Taylor Review released in 2017, and a formal response is expected in the early part of this year. A recent report published by the House of Commons Work and Pensions Committee and the Business, Energy and Industrial Strategy Committee recommended:
- Clearer definitions of employment status that focus on control and supervision, rather than on whether workers are able to send a substitute;
- A default status of worker in businesses with a workforce over a certain size;
- Requirement for a clear written statement of a worker’s rights and entitlements to be provided within 7 days of being engaged;
- Businesses with “flexible” workforces should either guarantee a minimum number of hours or pay a premium to national minimum wage to compensate for uncertainty;
- Higher fines for businesses that continue to falsely classify workers as self-employed after having lost similar cases at tribunal.
It is uncertain to what extent (if any) the government will consider this report in its formal response to the Taylor Review.
Finance Bill 2017
From 6 April 2018, all payments in lieu of notice (PILONs) in excess of £30,000 will be taxable, eliminating the distinction between contractual and non-contractual payments.
From 2019 these payments will also be subject to employer’s National Insurance.
Changes to the National Minimum Wage (NMW) and National Living Wage (NLW)
The government has accepted the recommendations of the Low Pay Commission. From 6 April 2018, new hourly rates will apply.
- Those 25 and over will see an increase from £7.50 to £7.83;
- If 21 to 24, an increase from £7.05 to £7.38;
- If 18 to 20, an increase from £5.60 to £5.90;
- If 16 or 17, an increase from £4.05 to £4.20;
- Apprentices see a rise from £3.50 to £3.70.
Gender Pay Gap
Private sector employers with at least 250 employees must publish certain information regarding differences between men and women in their workforce by 4 April 2018 if they have not already done so. There is a consultation now taking place on the enforcement regime for companies that fail to publish or publish inaccurate data.
Brexit implications continue to reverberate for businesses and their workforces. The government has stated that freedom of movement under EU Law for EU/EEA nationals will end post-Brexit, and that these nationals will be subject to new national immigration laws instead. The government has asked the Migration Advisory Committee to study the economic and social costs and benefits of EU migration to the UK economy, its impact on competitiveness and whether there would be any benefits on focusing migration on high-skilled jobs. The report is due in Sept 2018, and it is expected the government will take this into account in formulating the Immigration Bill later in 2018.
Cases Awaiting Hearing:
Aslam and Others v Uber BV and Others
Uber has appealed the Employment Appeal Tribunal ruling upholding an original employment tribunal decision that Uber drivers were workers and not self-employed. This is unsurprising given the implications the decision has on its entire business model and its 40,000 plus workforce. This case will have wide implications for the “gig” economy as a whole. The case will be heard by the Court of Appeal later year.
Pimlico Plumbers v Smith
The Supreme Court has agreed to hear this case in 2018. The Court of Appeal has upheld the previous decisions of both the ET and EAT, determining that Mr Smith was a "worker" and not "self-employed". In deciding where to draw the line between self-employed and worker, the Court of Appeal took various factors into account, such as personal performance and control.
Cases Awaiting Judgement:
Kilraine v London Borough of Lambeth
The EAT is considering whether a disclosure for whistleblowing purposes is merely an allegation rather than a disclosure of information as required by law.
King v Sash Windows
In a recent decision, the CJEU determined that employees, who are prevented from taking annual leave, cannot be stopped from bringing a claim because a new holiday year starts, and that there is no limitation as to how far back holiday pay can be claimed.
The case will return to the Court of Appeal to decide whether the Working Time Regulations can be interpreted in a way in which is compatible with the judgement.
It is also likely future claimants will argue the two year limitation for deductions and 3 month rule in Bear Scotland will be contrary to EU Law on this basis.
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