Author: Caroline Philipps
Every year sees new developments in employment law, and 2017 will be no different. Caroline Philipps, an associate in the Fladgate Employment team, looks at those areas of employment law that are likely to be of greatest interest in the New Year.
One of the most anticipated developments in employment law in 2017 is the long-awaited introduction of gender pay gap reporting. The first reference date on which relevant employers will take a snapshot of pay data is set for 30 April 2017, so it is now critical to identify what means and medians need to be calculated and how.
Broadly speaking, those employers affected (those with 250 or more relevant employees) will need to publish overall gender pay gap figures on salaries, together with data on the proportion of male and female employees receiving bonuses and data on the amount of bonus payments made. The first reporting date is set for 28 April 2018.
Some of the finer details of the regulations remain under review. One current unknown is whether the definition of “relevant employee” will incorporate the broader category of “worker”.
We recommend that those businesses affected should already be making sure pay data is collated in a clear and easily accessible format. It may also be a sensible precaution to undertake a “dry run” calculation of pay by gender ahead of the first reference date, as this may help identify any gap that may currently exist and enable employers to address it whilst there is still time.
It has been over 18 months since shared parental leave was introduced in April 2015. Reports suggest that take up remains low, with as few as 4% of eligible parents taking advantage of the new family friendly regime. There is very little data to help determine why this might be. The lack of interest may be due to a failure by many employers to enhance shared parental pay (ShPP) to the level of enhanced maternity pay. It will be interesting to see whether there is “test case” litigation in the New Year on whether any such differences are discriminatory. However, the take up is low even where enhanced ShPP is offered, so the present trend may merely reflect the fact that there has yet to be a “cultural” and practical acceptance of the principle of shared parental leave.
The Government was planning to extend shared parental leave and pay to working grandparents by 2018. It remains to be seen whether the Government pushes ahead with these proposals for grandparents in the face of low uptake by parents.
The legislation regulating whistleblower protection was amended in 2013, with the effect that a “qualifying disclosure” now has to be “in the public interest”. The intention behind this change was to address the fact that previously the law was being interpreted as covering disclosures that related to the whistleblower’s personal circumstances alone, which did not reflect the public policy aims behind the legislation.
The question of what constitutes “in the public interest” was considered by the Employment Appeal Tribunal (EAT) in 2015 in the case of Chesterton Global Ltd and anor v Nurmohamed. Mr Nurmohamed’s disclosure in this case related to the payment of commission, which affected him and around 100 other senior manager colleagues. The EAT held that a protected disclosure need not be of interest to the public as a whole and Mr Nurmohamed’s disclosure was held to meet the public interest requirement.
Whilst it seems reasonable and logical that a protected disclosure need not affect the entire general public, the relatively small group affected in this case caused concern to employers, who saw the law reverting to a position where workers and employees could use whistleblower protection to serve their own interests.
An appeal of this case is due to be heard by the Court of Appeal next year, with the decision expected to clarify the extent of the “public interest” required in order for a worker or employee to benefit from whistleblowing protection.
A considerable amount of publicity surrounded the recent case in which two Uber drivers successfully challenged Uber’s position that its drivers are self-employed contractors. In a judgment that was highly critical of Uber, an Employment Tribunal (ET) held that the claimants are workers and, as such, are entitled to the national minimum wage, paid annual leave and whistleblower protection, none of which are available to people who are genuinely self-employed contractors. Uber has approximately 40,000 drivers under contract and this decision could have a significant adverse financial impact on its business model.
The decision also has a wider significance in a society where tens of thousands of workers are engaged in the so-called “gig-economy”. Such a scathing attack from the ET on the employment practices in the market will surely give confidence to gig-economy workers, currently unionising under the Independent Workers Union of Great Britain (IWGB), to challenge their status quo. Meanwhile, and not surprisingly, Uber is appealing the ET decision, and so we await the opinion of the Employment Appeal Tribunal with interest.
No speculation on the year to come could be complete without some reference to Brexit. Triggering Article 50 could without question set in motion the biggest legislative shake-up this country has ever witnessed and employers want to know how it will affect the employment laws that influence the day-to-day running of their business.
In practice, a wholesale repeal of European derived employment legislation looks unlikely. Many of the employment-related protections afforded by EU regulations and directives either already existed in domestic law or have been implemented above and beyond the minimum EU standard (for example, protection from discrimination and minimum annual leave entitlements).
Brexit is more likely to result in a number of smaller changes, whose scope will depend on the political, economic and social mood at the time. If the government in charge is keen to show it is open for business, we may see some business friendly changes, such as the introduction of statutory caps on discrimination compensation awards or a repeal of the Working Time Regulations’ limit on hours worked in a week.
Caroline Philipps, Associate, Fladgate LLP (firstname.lastname@example.org)