August Employment Law Update

Supreme Court decides tribunal fees are unlawful

In a surprise decision, the UK’s highest court has overruled government policy on tribunal fees and quashed the 2013 regulations, thereby raising the prospect of a rise in claims. At the same time, the government-commissioned Taylor report has suggested ways to shape employment law for the future

Tribunal fees

The fees regime for bringing an employment tribunal claim has been abandoned following a ruling from the Supreme Court on 26 July 2017. The case, R(Unison) v The Lord Chancellor SC [2017], is the culmination of a four-year legal battle, in which the trade union argued that the regulations introducing the charges in July 2013 were unlawful, indirectly discriminatory against women, and a barrier to justice. Tribunal claims have dropped by around 70 per cent since fees were introduced.

The court quashed the regulations, meaning that fees are no longer payable when a claim is presented or taken to a tribunal hearing. The government has said fees paid to date (reported to amount to around £32 million) will be reimbursed, but has not specified how this will be achieved. 

There is speculation that the number of tribunal cases will now rise but the decision does not prevent the government introducing another fee system.

In a separate development, the Ministry of Justice has begun publishing employment tribunal decisions on a new government website.

The Taylor report

Matthew Taylor’s report, ‘Good Work: the Taylor Review of Modern Working Practices’, commissioned by the government last year, was published in July 2017. It has made a number of suggestions for bringing the existing employment law framework more in to line with emerging patterns of working, especially those prompted by the ‘gig economy’. They include:

  • Replacing the existing employment status category of ‘workers’ with ‘dependent contractors’, who would be able to send a substitute without losing basic employment rights such as the national minimum wage, paid holidays and statutory sick pay.
  • Clearer statutory tests to distinguish between ‘dependent contractors’ and ‘employees’ and a shift in the burden of proof in tribunals from claimants to respondents when determining employment status.
  • Aligning tax and employment law on employment status, and providing a free online tool for determining employment status, similar to the one available from HMRC.
  • Giving zero hours workers the right to request guaranteed hours, and agency workers a direct contract with an end user, after 12 months in a job.
  • Repealing the ‘Swedish derogation’ compromising agency workers’ rights under the Agency Workers Regulations 2010.

The review is likely to provide the basis for policy debates for the foreseeable future.

Parental bereavement leave

Under the Employment Rights Act 1996, employees have a day-one right to take a ‘reasonable’ amount of unpaid leave in order to deal with an emergency involving a dependant, which could include a child’s death. But in July, the government-backed private members’ Parental Bereavement (Pay and Leave) Bill was introduced in Parliament which will give working parents the right to two weeks’ paid leave “for the purpose of grieving for a deceased child and supporting the other parent or parents”. The leave will be paid at the same rate as statutory maternity/paternity leave, currently £139.58 or 90 per cent of earnings, whichever is lower. Entitlement will be subject to service qualifications and proof of the employee’s relationship to the child. The Bill is expected to have its second reading in the autumn but there is no indication yet of when it will become law.

The Department for Business, Energy and Industrial Strategy said it will be work with employers and other groups over the summer in order to get a better understanding of the needs of bereaved parents and employers.

GDPR guidance

The ICO website has provided helpful guidance for employers on the General Data Protection Regulation, due in force in May 2018.

Guidance: what to expect and when’, provides access to an ICO note on ‘Preparing for the GDPR: 12 steps to take now’(pdf) on the key actions data controllers should take to prepare for the new rules. More detailed guidance, ‘Overview of the GDPR’, sets out how data protection law will change when the GDPR comes into force. 

There is also specific guidance on consent - ‘draft consent guidance for public consultation’ - which contains a useful checklist. The ICO is due to publish a revised version of this guidance later this summer.

 

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