Employment law never stands still for long and 2015 was no exception.
We have picked out our top ten developments for you:
After the cases of Williams v British Airways, Lock v British Gas and Fulton v Bear Scotland, the current position is that in calculating holiday pay employers have to take into account commission and guaranteed and non-guaranteed overtime as elements of ‘normal pay’.
In July 2015 the government introduced a two year cap on the length of time for which damages can be awarded on holiday pay claims.
The case of Patterson v Castlereagh Borough Council in June 2015 established that there was nothing in principle to prevent voluntary overtime being required to be included in holiday pay.
Whether the overtime is worked frequently enough to be regarded as falling within normal pay is a question of fact for the tribunal.
The appeal on the British Gas case was heard in the EAT on 8 and 9 December 2015 and the outcome will be reported once it is known. In the meantime employers should consider whether voluntary overtime is worked frequently enough to be normal pay.
2015 was a big year for data protection.
The most important development was when the European Data Protection Regulation was agreed. The Europe-wide Regulation will come into force early in 2018 and will result in a broadly uniform set of rules across the EEA.
One of the most important implications for businesses will be the requirement to appoint a Data Protection Officer provided that the business has over 250 employees or processes the data of 5000 or more data subjects.
The DPO must be up to speed on data protection requirements, must monitor the implications of the business’s data protection policies and ensure mandatory documentation is maintained and must keep employee representatives informed on the processing of employee personal data.
In addition businesses should prepare as follows:
- Carry out a data protection audit, looking at consents, information security and cookies
- Review policies and procedures, especially
- – Data breach policies
- – Subject access requests
- Training, training, training!
The case of Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another caused shockwaves in the HR press in September 2015.
The case held that peripatetic workers (those with no fixed or habitual place of work) should have their travel time to the first appointment of the day and from the last appointment of the day counted as working time under the Working Time Directive.
The case was stated to have no implications concerning pay since the Working Time Directive is concerned with hours of work and rest breaks and not pay.
However, this case is likely to increase the pressure on certain low paid sectors to ensure no breaches in the National Minimum Wage (soon to become National Living Wage).
In addition employers need to review average weekly hours including travel time for peripatetic workers, and to ensure they are complying with rest break requirements (11 hours rest between finishing work one day and starting work the following day).
The second most important development in data protection in 2015 was the decision in Schrems v Data Protection Commissioner that the US Safe Harbor regime was not adequately protecting the personal data of EU citizens.
This has huge implications for those global organisations based in the US such as Google and Facebook, but also for any business sending personal data to the US.
If this applies to your business, there are some simple steps to take:
- Review and consider alternatives to data being sent to the US, particularly if this is only as a result of use of the Cloud
- Keep up to date with developments re Safe Harbor
Exclusivity clauses in zero hours contracts were rendered unenforceable by the Small Business Enterprise and Employment Act 2015.
The legislation currently contains no power to regulate zero hours contracts in themselves and there are conflicting reports about their effectiveness and popularity.
The recent Sports Direct news investigation might lead to further action, so watch this space.
In May 2015 the government introduced a maximum penalty of £20,000 for the non-payment of the NMW for each worker affected.
This could be a very expensive mistake if the employer inadvertently slips into underpayment by complicated pay and hours arrangements.
The wage rate increased to £6.70 on 1 October. Don’t forget the National Living Wage coming into force on 1 April 2016, introducing a minimum wage of £7.20 for those aged 25 and above.
Shared parental leave rights came into force in April 2015. Parents are now able to share leave once maternity leave has been brought to an end.
There are complicated provisions regarding:
- eligibility criteria for taking the leave
- how notifications and requests should be made
- terms and conditions during leave, the right to return to work and protections from detriment or dismissal for taking the leave
The government has also announced the intention to make grandparental leave available from 2018, with a consultation exercise taking place during 2016.
New guidance was issued on this new service in September 2015.
Employers and GPs are able to refer employees to the service once there has been an absence of at least 4 weeks (or is likely) and is subject to the employee’s consent. There are tax breaks available to employers for up to £500 per employee for medical treatments recommended by a healthcare professional. Employers wishing to take advantage of the new service should consider if amendments are required to the sickness absence policy.
The Modern Slavery Act 2015 came into force in October 2015. It requires businesses which carry out business in the UK, with a turnover of £36m or more, to produce a public statement on the action they have taken to ensure their supply chains are slavery free.
The statement should include the following information on their own business and that of their supply chain:
- Anti-slavery and human trafficking policies in place
- Company structure
- Due diligence processes
- High risk areas and steps taken to assess and manage risks
- Effectiveness of prevention, compared to appropriate ‘KPIs’
- Staff training
This will have implications for smaller businesses in the supply chain who will face similar enquiries and who should start preparing for these by putting in place appropriate policies and procedures.
The final data protection development we focus on is the outlawing in March of the practice of some unscrupulous employers of enforced subject access.
This became a criminal offence and applies to anyone requiring an individual to make a subject access request to obtain information which they are then obliged to reveal, typically relating to their criminal record.
The practice apparently became more widespread following the introduction of the Disclosure and Barring Service (DBS) which replaced the previous CRB check process.
The correct way to deal with searches (where appropriate) is to use the DBS and subscribe to the update service which has introduced the vital element of portability. There is a very good guide to the DBS checking scheme on the government’s website: www.gov.uk/guidance/dbs-check-requests-guidance-for-employers
And finally, we would like to wish you all a very Merry Christmas and a Happy New Year!
For guidance on any of these issues including training and policies please contact Claire Bell or Nic Elliott.
Posted on December 18, 2015