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Employment 2018

Employment : What’s new in 2018, after 2017, a significant year for employers and employees, with the Taylor Review and the Supreme Court’s ruling on tribunal fees taking centre stage.

Employment status will continue to be a hot topic in 2018, with individuals designated as self-employed by their employer seeking the protections offered by worker or employment status. We expect the Government to provide a response to the Taylor Review on modern employment practices and this is likely to impact those working in a gig economy industry.

The ECJ’s decision that workers who are wrongly informed they are not entitled to holiday pay can carry holiday rights over indefinitely and also be paid in lieu for any untaken holiday during their entire period of employment on termination. A Court of Appeal decision will be highly relevant to those who have been classified as self-employed during a contract but are then subsequently shown to be workers or employees.

In April, the first of the mandatory gender pay gap reports for large private and voluntary sector employers will be due. This follows the obligation on large employers to publish an annual report containing data on their gender pay gap, which was introduced last year. Public sector employers that fall within the remit must report by 30 March 2018.

Of course we will also see the introduction on 25 May 2018 of the new EU General Data Protection Regulation (GDPR) which covers a host of changes in regulations regarding the collection and holding of personal data. Some of the considerations include, but are not limited to:

  • greater penalties for non-compliance
  • increased requirements around record keeping and reporting
  • the requirement to include additional information in privacy notices and contracts with data processors
  • increased information security
  • a far narrower definition of consent
  • changes to the rules around the handling of subject access requests
  • new rights for individuals in relation to their data

Get in touch with us to discuss your current and future employment challenges. We’d be delighted to help.

The Rise of the Gig Economy

The Gig Economy is a labour market characterised by the prevalence of short-term contracts and freelance work as opposed to permanent jobs. A Gig is a job that is temporary or has an uncertain future.

The Taylor Review, published in July and the more recent Work and Pensions & BEIS Committees report ‘A Framework for Modern Employment’ published this November, have identified within the Gig Economy, that there needs to be clear definition of a contractor and a review of employment status with primary legislation to set out key principles and secondary legislation to provide guidance.

The Taylor Review has looked at wider worker status including that of agency workers and recommended flexibility, being able to earn the national minimum wage and less emphasis on the requirement to perform work personally. Importantly there should now be a written statement of terms and conditions, extended to workers as well as employees, and an introduction of higher national minimum wage for hours that are not guaranteed as part of the contract. It is advisable now to record periods of continuous employment, despite breaks in service and improve the transparency of information given to agency workers more generally.

Further implications on HR practice include the right to ask for the agency worker to request a direct contract of employment after 12 months of engagement with the same hirer and the right to request a contract that guarantees hours, reflecting actual hours worked, for those who have been in post on a zero hours contract for 12 months.

Employers should be required to report on their employment practices, including their model of employment and their use of agency workers.

A Framework for Modern Employment has sought clarity in primary legislation of the key principles:

  • Legislation to introduce greater clarity on definitions of employment status, emphasising the importance of control and supervision of workers and not as focused on the right of substitution.
  • Legislation to implement a worker by default model to apply to companies who have a self employed workforce above a certain size.
  • Low Pay Commission pilot for workers who work non-contracted hours to receive a pay premium on the NMW and NLW.
  • Continuous service preserved for breaks in employment of up to one month.
  • Higher, punitive fines and costs orders on employers if they have already lost a similar case.
  • Great use of class actions in tribunals in disputes over wages, status and working time.
  • Government rules out introducing any legislation that would undermine the NMW/NLW.

And also clarity in secondary legislation to provide guidance:

  • Extension of duty to provide written statement of terms and conditions to cover workers as well as employees from day one of the job.
  • Lower the ICE threshold.
  • End the Swedish derogation for agency workers.
  • Deterrent penalties, including punitive fines, for repeat or serious breaches of employment legislation and naming and shaming for all non-accidental breaches of employment rights by business and supply chains.
  • Increased resources for the Director of labour Market Enforcement to be both reactive and proactive funded through higher fines on non-compliant organisations.

For more information and support in developing appropriate policies and practice for hiring workers within the Gig Economy, please contact us.