What to expect from employment law in 2019

David Reid
Director
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As 2019 starts to gather momentum, we take this opportunity to look forward to some of the issues and developments on the horizon in UK employment law

From 6 April 2019, 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 will increase from £5,000 to £20,000. There are no reported cases providing examples of what constitutes an “aggravating feature”, but prior government guidance suggests that where the breach of the employee’s rights is deliberate, malicious or occurs repeatedly, the tribunal will be entitled to impose a financial penalty.

There are two changes affecting payslips from 6 April 2019. Individuals who are considered to be “employees” have always had the right to receive an itemised payslip. However, this right is now being extended to “workers”. This extends the right to an itemised payslip to anyone who is required to perform work personally and is not in a client/contractor relationship. Additionally, where a member of staff’s pay varies according to the time worked, the payslip must contain the total number of hours worked for which variable pay is received.

As Brexit draws closer, it is good practice for employers to ensure their EU national employees consult the government’s EU Settlement Scheme to ensure that they take appropriate steps to maintain the right to work in the UK after free-movement laws cease to apply.

There will be an increase to statutory payments with effect from 6 April 2019:

• statutory sick pay will increase from £92.05 to £94.25 per week; and
• statutory maternity pay, statutory paternity pay, statutory shared parental pay and statutory adoption pay will increase from £145.18 to £148.68 per week.

The National Minimum Wage will also increase on 1 April 2019. The new minimum rates will be:

• for those 25 and older: £8.21 per hour;
• for those between the ages of 21 and 24: £7.70 per hour;
• for those between the ages of 18 and 20: £6.15 per hour; and
• for those between the ages of 16 and 18: £4.35 per hour.

From 6 April 2019, the minimum contributions for auto-enrolment pension schemes will increase for both employers (3%) and employees (5%). Employers should liaise with their pension providers in advance to ensure compliance.

Employers with 250 or more employees must report on their percentage gender pay gap annually within 12 months of 31 March 2019 for those in the public sector, and 5 April 2019 for those in the private sector.

Employers will be starting to prepare for the introduction of the right for bereaved parents to take time off work, due to come into force in April 2020. Employers may wish to consider introducing a bereavement policy, if they do not have one already, to inform employees of their rights and entitlements.

The government has recently confirmed that they are looking to introduce a Statutory Code on Sexual Harassment in the workplace this year. The government has indicated that they will liaise with the Equality and Human Rights Commission to draft this code, which is aimed at ensuring that employers understand their legal responsibilities and the steps they can take to address and prevent sexual harassment in the workplace. Failure by an employer to comply with this new Code may make it more difficult to defend a discrimination claim.

The Law Commission will present its recommendations to the government following their recent consultation, which closed in January 2019, regarding the Employment Tribunal. Views were sought, amongst other things, on whether the three-month time limit for most Employment Tribunal claims should be made more generous, and whether the tribunal’s £25,000 limit for contract claims should be increased.

In October 2018, the government announced plans to implement new legislation to prevent employers from keeping tips and service charges that were intended for workers. The Government has indicated that this will come into force “at the earliest opportunity”.

On 25 January 2019, the government launched a consultation proposing that the legal protection against redundancy for pregnant women and new mothers on maternity leave is extended so that it continues for up to six months after they return to work. The consultation will close on 5 April 2019.

Perhaps one of the most significant proposed changes outlined above is the increase to the maximum financial penalty an Employment Tribunal can impose on an employer for an “aggravated” breach of an employee’s rights. For example, an employer considering deliberately infringing a low paid employee’s rights, on the basis that the liability to the employee for doing so is likely to be low, may now be deterred from doing so by the prospect of a much more significant financial penalty.

Likewise, businesses growing in size should be careful to identify new legal obligations where their turnover or employee numbers hit certain thresholds. As outlined above, the obligation to publish a gender pay gap report comes into effect once the employer has 250 employees. There is also an obligation to publish information about the steps your business takes to avoid slavery in its supply chains once annual turnover reaches £36 million.

The proposed extension to redundancy protection for new mothers is perhaps not as radical as many campaigners on this issue hoped for. It is important to remember that existing protections during the maternity leave period do not prevent an employer from making a new mother’s role redundant. Rather, they simply oblige the employer to give a new mother who finds herself in a redundancy situation first priority on any suitable vacancies elsewhere in the organisation. The proposed change to the law will simply extend this limited protection beyond the end of the maternity leave period, for a further six months.

We will publish updates on these forthcoming changes as the year progresses. However, 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.

Topics: Annual Summary, Employment Tribunal, Gender Pay Gap, Statutory Payments