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Employment law: What to look out for in 2020

22 January 2020
Employment law never stands still and with a newly appointed Government and Brexit around the corner, 2020 looks no different.  

The Conservative Party has committed to delivering Brexit and ending the role of the Court of Justice of the European Union.  The Queen's speech delivered on 19 December 2019 set out a number of proposals to be brought in under a new Employment Bill.  The measures include: a single enforcement body to help protect vulnerable workers, proposals that tips should go to workers in full, the right to request a more predictable contract, extension of pregnancy/maternity discrimination protection, leave for neonatal care, and flexible working as a default position.  Further detail is awaited pending consultation.  

The following are the key employment law developments expected in 2020:

Pay, holiday pay and termination payments

National minimum wage (1 April 2020): Rates will increase on 1 April 2020 with the National Living Wage (aged 25 and over) rising from £8.21 to £8.72. The Government has consulted on salaried hours and salary sacrifice schemes, the outcome is awaited.  

Gender pay (4/5April 2020): Large (250 or more employees) private sector and voluntary sector employers' gender pay gap reports are due by 4 April 2020 (30 March 2020 for public sector organisations), with a snapshot date of 5 April 2020 for the following year's report (31 March 2020 for public sector organisations). Possible equal pay queries following gender pay reports.  

Termination payments (6 April 2020): Termination payments which exceed £30,000 will be subject to employer National Insurance contributions.  

Holiday pay reference period (6 April 2020): Annual leave reference period for calculating an average week's pay to increase from 12 weeks to 52 weeks.  This reference period will provide a fairer system for workers who do not have a regular working pattern.

Holiday pay - Chief Constable of the Police Service of Northern Ireland and another v Agnew (appeal lodged- permission stage – Supreme Court):  If the appeal goes ahead the Supreme Court will consider the Northern Ireland Court of Appeal's finding that the three month gap rule does not break a series of deductions.  

Employment status and atypical workers

New IR35 rules (expected 6 April 2020): All parties to labour supply chains need to be aware of their obligations arising from the new IR35 rules in the private sector.  The rules shift the burden of assessing whether the legislation applies (and operating PAYE where it does) away from the personal service company. Employment status will need to be assessed and a determination made as to whether the arrangements constitute disguised employment.  For further information please see our Legal Insight 

Swedish derogation (6 April 2020): The Swedish derogation provisions will be removed which currently allow employment businesses to avoid pay parity between agency workers and direct employees if certain conditions are met.  

Key information sheet for agency work seekers (6 April 2020):  With effect from 6 April 2020 temporary work agencies are required to provide a key information sheet detailing minimum pay, mechanism for pay and type of contract.  

TUPE protection for workers - Dewhurst v Revisecatch Ltd t/a Ecourier (possible appeal): An Employment Tribunal has held that workers qualify for protection under TUPE.  This is a first instance decision. For further information please see our Legal Insight 

Employment status - Uber BV and ors v Aslam and ors (hearing on 22 and 23 July 2020 in the Supreme Court):  The Supreme Court will decide whether Uber drivers are workers for the purpose of the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.     

Written statements of terms of employment (6 April 2020): Written statements must be provided on day one (rather than within the first two months of employment) to all workers (rather than just employees). There is also an extension of the information which must be provided, including: information in relation to hours of work, details of other benefits and training and information on probationary periods.

Employment documentation and rights

Bereavement leave and pay (April 2020): Leave and pay to be available for parents who suffer the loss of a child under the age of 18. The leave should be taken as a single block or as two separate weeks and must be used within 56 weeks of the child’s death.

For further information please see our Legal Insight

Information and consultation provisions (6 April 2020): The threshold required for a request to set up information and consultation arrangements will lower from 10% to 2% of employees, subject to the existing minimum of 15 employees.  

Equality and diversity

Non-disclosure agreements (NDAs) (expected 2020?): SRA and Law Society Guidance has been issued stating that NDAs must not prevent an employee making disclosures to the police or other law enforcement or regulatory bodies. Legislation (when Parliamentary time allows) is expected limiting the extent of NDAs. Following the #metoo movement NDAs have been in the spotlight.  

EHRC technical guidance/Statutory Code of Practice (guidance published and Code expected to follow shortly): As part of the Government's commitment to tackling sexual harassment in the workplace, the EHRC has been asked to develop technical guidance and an accompanying Code.  Please see our Legal Insight for further information.   

Consultation on sexual harassment in the workplace (closed on 2 October 2019 - outcome awaited): The consultation focused on a mandatory duty for employers to prevent harassment, possible extension of time limit to bring a claim and third party harassment.  

Ethical veganism held to be a philosophical belief - Casamitjana v the League Against Cruel Sports (merits hearing February 2020): Ethical veganism has been held to be a philosophical belief by an Employment Tribunal.  Please see our Legal Insight  for further information.  

Shared parental leave - Chief Constable of Leicestershire v Hextall (permission to appeal has been refused): The Supreme Court has refused permission to appeal this case.  The Court of Appeal decision that it is not discriminatory to pay different rates of pay for women on maternity leave and men on shared parental leave stands.  

If we can be of any assistance with regard to the issues raised in this update please get in touch with your usual contact in the employment team or another one of our employment experts.