Changes to Employment Law 2020

Monday 16 December 2019

2020 looks like it’s going to be another eventful year for employment law. Here is a summary of some of the new legislation that we can expect next year:

• Parental Bereavement Leave and Pay

The Parental Bereavement (Leave and Pay) Act 2018 has now gained Royal Assent and is expected to come into force in April 2020.

Assuming it does, it will give all employed parents who lose a child under the age of 18, or suffer a still birth from 24 weeks of pregnancy, the right to two weeks’ leave either in one two-week block or two separate blocks.

The leave must be taken before the end of the period of 56 days beginning with the date of the child’s death. Parents will also be able to claim pay for this period (subject to meeting certain eligibility criteria).

• Written statements of employment particulars

All workers employed on or after 6 April 2020 will be entitled to a written statement of employment particulars, to be provided on or before their first day of employment.

Written statements will now need to contain the following:

• • • The hours and days of the week the worker/employee is required to work
    • Entitlement to any paid leave
    • Any other benefits not covered elsewhere in the written statement
    • Details of any training provided by the employer
• Agency workers’ rights – the abolition of the Swedish derogation

Previously, after 12 weeks working on the same assignment, agency workers were entitled to the same pay and working terms as their permanent counterparts. Under what became known as “the Swedish derogation” agency workers could agree contractual terms which would remove their right to equal pay (though not their right to other comparable terms).

From April 2020 this contracting-out will no longer be permissible and after 12 weeks’ work all agency workers will be entitled to the same rate of pay (and other terms) as their permanent counterparts.

All agency workers will be entitled to a key information document that sets out their employment relationships and terms with the agency.

Agency workers who are considered to be employees will be protected from unfair dismissal.

• Information and Consultation of Employees Regulations (ICE)

From April 2020 there will be a reduction in the threshold percentage of employees required to make a valid request for an agreement on the sharing of information and consultation within the workplace. The threshold will reduce from 10% to 2%, subject to a minimum of 15 employees.

• Holiday pay calculation

From April 2020, the reference period for determining an average week’s pay will lengthen from 12 to 52 weeks.

• IR35 rules for private sector

These changes will be implemented for medium and large businesses in the private sector and will largely mirror changes that took effect in the public sector in 2017.

Under the new regime, for all contracts entered into or payments made on or after 6 April 2020, the responsibility for accounting for tax and national insurance will shift from an individual worker’s personal service company to the end-user client who pays for the individual‘s services.

Upcoming Cases

Let’s not forget about the important cases that will be decided by the Supreme Court and the Employment Appeal Tribunal (EAT) in 2020:

• Varnish v (1) British Cycling and (2) UK Sport

The hearing will take place in the EAT to determine whether an Olympic-funded athlete is an employee or worker so as to be able to bring claims of sex discrimination, detriment for whistleblowing, victimisation and unfair dismissal.

An Employment Tribunal (ET) held that the claimant was not an employee or worker of British Cycling or UK Sport.

• Awan v ICTS UK

This case, which will be heard in the Court of Appeal, will determine whether the EAT was correct to allow an appeal from an ET decision and hold that an employer had breached an implied contractual term when it dismissed an employee on the grounds of capability and so frustrated the employee’s ability to enjoy the benefit of long-term disability benefits.

The EAT held that there was an inherent contradiction between the employer’s contractual right to terminate on notice and the employee’s contractual right to disability benefits.

• Harpur Trust v Brazel

The Supreme Court will hear an appeal lodged in relation to calculation of holiday pay for part-time workers.

The EAT held it was wrong to calculate holiday pay for part-time workers pro rata to the figure of 12.07% which is the percentage of the annual salary of a full-time worker paid as holiday pay during 5.6 weeks’ holiday.  The employer must instead use the average pay over the preceding 12 weeks under the Working Time Regulations 1998.

The Court of Appeal agreed with the EAT and dismissed the employer’s appeal.

• Royal Mencap Society v Tomlinson-Blake

This case will be heard in the Supreme Court. It relates to the treatment of sleep-in shifts for National Minimum Wage (NMW) purposes.

The EAT held that the ET was correct to find a care worker (who provided care for two vulnerable adults with local authority assessed care plans specifying 24 hour support) was working for the entirety of her sleep-in shifts.

The Court of Appeal allowed Mencap’s appeal holding that sleep-in workers are entitled to be paid the NMW only when they are awake to carry out any relevant duties.

If you would like more information on any of the above, please contact a member of our Employment Law team today.