By Pauline Hughes, Trainee Solicitor.
As 2019 draws to a close, we take this opportunity to reflect on some of the employment law developments from this year.
As expected, with effect from April 2019, there were the standard increases to statutory payments, such as statutory sick pay, the national minimum wage and the living wage.
Further, there were increases to the awards that the Employment Tribunal can make in unfair dismissal cases, including an increase to the compensatory award for unfair dismissal cases from £83,682 to £86,444.
Additionally, the Vento bands, which are used when assessing awards for injury to feelings in discrimination cases, were increased as follows:
- The lower band for less serious cases increased to being between £900 and £8,800;
- The middle band was increased to between £8,800 and £26,300;
- The upper band for most serious cases increased to between £26,300 and £44,000; and
- For exceptional cases, awards over £44,000 can be made.
Gender pay gap reporting
Employers with 250 or more employees were required to report on their gender pay gap by 4 April 2019. The data from the reporting has now been ingathered and shows that less than half of employers were able to close the pay gap and that the pay gap has increased for 45% of employers.
Government good work plan
Following the Taylor Review, the Government took steps to introduce some of the proposals from the Good Work Plan introduced in 2018.
There were a significant number of proposals in the Good Work Plan including, but not limited to, extending the holiday pay reference period from 12 to 52 weeks, extending the right to a written statement of terms and condition to workers (making this a day one right), and amending the rules so that a break of up to four weeks, instead of one week, will be required to break continuity of employment. Many of these proposals may become law in 2020.
The first recommendation from the Good Work Plan was adopted onto the statute books this year, specifically that where an employer is found to have breached a worker's rights to which an Employment Tribunal claim relates, and that breach has "one or more aggravating features", the sum that the Employment Tribunal can order the employer to pay as a penalty increased from £5,000 to £20,000.
Following the #MeToo movement, the past year has seen discussion over whether there should be changes made to confidentiality clauses used in settlement agreements and contracts. Historically, these clauses are used to protect confidential information, but in recent times have been widely criticised for allegedly silencing victims of sexual harassment and discrimination.
Earlier this year, the Government published a consultation on ways in which to prevent individuals from abusing confidentiality clauses to conceal workplace harassment and/or discrimination. Following this, in June 2019, the Women and Equalities Committee published a report highlighting their current concerns and putting forward recommendations regarding how confidentiality should be used moving forward. In July 2019, the Government published a response to this report, identifying ways in which the misuse of confidentiality clauses can be prevented.
The reported suggested:
- introducing legislation to ensure that confidentiality clauses cannot prevent an individual disclosing to the police, regulated health and care professionals and/or legal professionals;
- introducing legislation to ensure the limitations of a confidentiality clause are clear to those signing them; and
- introducing legislation to improve independent legal advice available to individuals when signing agreements and producing guidance on drafting confidentiality clauses.
We can expect further developments in this area in the year to come.
Case law updates
There has been a raft of employment law case law this year. We consider that two cases in particular are worth mentioning as we approach the end of the year:
The case of London Borough of Lambeth v Agoreyo confirmed that where an employer has the contractual right to suspend an employee pending a disciplinary investigation, it will be an implied condition that suspension should only occur where it is “reasonable and proper” to do so.
The case of Pheonix House Limited v Stockman suggested that covertly recording an internal meeting will usually constitute misconduct, but not necessarily gross misconduct. However, each case will be decided on its facts. Employers should not, therefore, assume that it will always be fair to dismiss an employee for covertly recording a meeting.
If you would like to discuss any of the above changes or proposals, or you require support or advice on any employment law matters, please do not hesitate to contact the team on 0141 331 5150.