Employment law – what to expect in 2016

Louise Walker
Legal Director
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A happy new year from everyone at Just Employment Law to our readers. In this first update of 2016, we outline some of the key developments we expect to see in the field of employment law during the forthcoming year.

Immigration

The Immigration Bill proposes to extend the existing criminal offence of an employer ‘knowingly’ employing an illegal migrant to having ‘reasonable cause to believe’ an employee is an illegal worker. It also proposes to increase sentences for those knowingly employing illegal workers.

Other changes include a new requirement for public sector workers in customer-facing roles to speak fluent English. The new laws are expected to come into force towards the end of 2016.

National Minimum Wage (NMW)

From 1 April 2016, the new ‘National Living Wage’ will come into force. From that date, workers aged 25 or over will be entitled to £7.20 per hour.

This is being brought in as a new rate of the National Minimum Wage, so the same rules about what counts as pay and what offsets can be made will apply.

Employers paying below the NMW currently face a fine equal to 100% of the underpayment owed to each worker, but this will double to 200% of the arrears owed if the debt is not cleared within 14 days. The maximum penalty will be £20,000 per underpaid worker.

Trade unions

The government proposes to change strike laws, to ensure that strike action takes place only on the basis of a clear and representative mandate and employers are given more time to prepare.

The proposed measures include a requirement for a 50% turnout in a strike ballot of those eligible to vote, additional requirements for emergency workers, new restrictions on picketing and an increase in the notice required for a strike from seven to 14 days.

Holiday pay

Holiday pay was perhaps one of the biggest talking points of 2015. The Employment Appeal Tribunal (EAT) heard the appeal in Lock v British Gas in December, and we currently await the EAT’s decision on whether, and if so, how, commission should be included in the calculation of a worker’s holiday pay.

Further important cases in this area are likely to be reported over the coming year.

Employment tribunal fees

Following the controversial introduction of employment tribunal fees in July 2013, the trade union Unison has made three unsuccessful attempts to have the fees regime declared unlawful by the courts, with its most recent appeal being rejected by the Court of Appeal. A further attempt at the Supreme Court is likely to take place this year.

The UK government is currently undertaking a review of the fees regime, but it is highly unlikely that this will result in their abolition.

The Scottish Government has already expressed a commitment to abolishing the fees regime in Scotland when new powers are transferred under the Scotland Bill.

Equal pay

There are two developments expected on this subject. The first relates to gender pay reporting, which will make the publication of equal pay audits compulsory for employers with 250 or more employees in the private, voluntary and public sectors.

The consultation on the matter closed in September 2015 and new legislation is expected in the first half of 2016.

On a related note, two large-scale claims are expected against supermarket giants Asda and Sainsbury’s next year. The female claimants are arguing that they are paid less than male workers who undertake work of equal value.

The case against Asda involves several thousand claimants and could have extreme financial consequences if the decision goes against the employer.

Topics: Annual Summary