The Employment Law changes 2019 and hot topics before the Courts in 2019
When it comes to a list of concerns in running businesses, employment law issues may come top of the list for many Employers as it is extremely complex with continual changing provisions and can be extremely costly when an organization get it wrong therefore to assist our members, we have picked out key areas which we think businesses need to be aware of when it comes to UK employment law changes in 2019.
From 6th April 2019 changes
Itemised pay statements - all 'workers' (not only 'employees') must be given a written itemised pay statement which includes the number of hours paid where they are paid hourly.
Employment Tribunal awards from 6th April 2019
- The maximum compensatory award for unfair dismissal will increase from £83,682 to £86,444. Consequently, for any dismissals which take effect on or after 6 April 2019, the maximum cap on the compensatory award will be the lower of £86,444 or 52 weeks’ pay.
- The limit on a week’s pay used to calculate certain statutory payments and provisions will rise from £508 to £525. As a result, the maximum basic award / statutory redundancy payment will be £15,750.
- Employment Tribunal penalties- maximum penalties for aggravated breach increase from £5,000 to £20,000.
Statutory maternity paternity, adoption and shared parental leave pay
From 7th April 2019 Statutory maternity paternity, adoption and shared parental leave pay rates increase from £145.18 to £148.68. Statutory Sick pay increases from £92.05 to £94.25.
National Minimum Wage
National Minimum Wage – From 1st April 2019 will see increases:
- rate for 25+ year olds (the national living wage) from £7.83 to £8.21 per hour
- rate for 21 to 24 year olds from £7.38 to £7.70 per hour
- rate for 18 to 20 year olds from £5.90 to £6.15 per hour
- rate for 16 to 17 year olds from £4.20 to £4.35 per hour
- rate for apprentices from £3.70 to £3.90 per hour.
Wages -Sleep-in shifts
In Royal Mencap Society v Tomlinson-Blake, the Court of Appeal overturned numerous EAT judgments to rule that the only time that counts for national minimum wage (NMW) purposes during sleep-in shifts is the time when the worker is required to be awake to carry out their work.
The Court of Appeal judgment has had a huge impact on the care sector, with the Government suspending its social care compliance scheme, which was set up to allow care-sector employers to volunteer back payments to sleep-in staff who were previously denied the national minimum wage. The Supreme Court is expected to grant permission to appeal in early 2019 to be heard sometime late 2019/early 2020.
Where an employee is dismissed, it will be automatically unfair if the principal reason for the decision to dismiss was that they made a protected public interest disclosure. But what if the decision-maker is being manipulated by another? In the case of Royal Mail Ltd v Jhuti, the dismissing officer was unwittingly misled by the employee's line manager. In 2017, The Court of Appeal, confirmed that in the context of a whistleblowing unfair dismissal claim, even where manipulation has taken place, it is only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss that is relevant. Unfair or even unlawful conduct on the part of individual colleagues or managers is immaterial unless it can be properly attributed to the employer. The Supreme Court will now consider the issue of decision-maker manipulation in Jhuti, on 12 and 13 June 2019.
Family Friendly-Shared parental leave pay
Where employers offer enhanced contractual maternity pay to mothers, can they only offer statutory shared parental leave (ShPL) pay to fathers? Does a failure to match contractual enhancement for fathers taking ShPL amount to direct or indirect sex discrimination?
There is no express obligation on employers in the ShPL legislation to match enhanced contractual maternity pay. Indeed, Government guidance is that employers are not so obliged. But the question remains whether employers might be obliged to do so under the Equality Act 2010. At what point is maternity leave no longer designed to protect a woman's biological condition following pregnancy, or the special relationship between mother and baby, and instead becomes akin to childcare?
The Court of Appeal is due to consider these questions on 1 May in two combined appeals, Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police.
Holiday pay calculation
Working out holiday entitlement for term time only workers, casual and zero-hour workers can often prove to be an administrative headache. Many employers used the 12.07% of annualised hours shortcut as set out in ACAS guidance. Last year the EAT in Brazel v The Harpur Trust held that when calculating holiday pay for variable hour term-time workers, employers must calculate holiday pay on the basis of the average hours worked in the preceding 12 weeks immediately before payment is made as required under the Working Time Regulations 1998. The Court of Appeal will further consider the use of this short-cut on 2 May.
Investigating criminal misconduct
An employer investigating alleged misconduct which also amounts to a criminal offence, should disciplinary action be put on hold pending the outcome of criminal proceedings? Can an employee insist disciplinary proceedings be adjourned on the basis that his response to questions could prejudice a pending trial or police interview?
On 19 or 20 February, the Court of Appeal will consider whether the High Court was correct to grant an injunction holding that the employer would be in breach of the implied term of trust and confidence if it refused a request for an adjournment in Gregg v North West Anglia NHS Foundation Trust.
On 28 November 2018, the Grand Chamber of the European Court of Human Rights in López Ribalda v Spain considered whether an employer's decision to install hidden cameras to monitor suspected workplace theft by a number of supermarket cashiers violated the cashiers' privacy rights under Article 8 of the European Convention on Human Rights.
The judgment currently awaited is expected to provide guidance on when the use of covert video surveillance may be considered appropriate.
If this article raises any issues for you or your organisation, please speak to our Quest HR Advisors.
The contents of this article is intended for general information purposes only.