2019 is shaping up to be another year in which the legal and political landscape is dominated by Brexit. With just over two months to go until the anticipated Brexit date, the terms of our exit remain far from clear.
Whatever form of Brexit we ultimately take, the employment law landscape is unlikely to change significantly in the short to medium term, with the only immediate impact being in relation to immigration and the EU settled status scheme, discussed below. However, there will also be some other developments for public sector employers to watch out for over the coming year.
EU settled status scheme
EU citizens and their close family who wish to remain in the UK from 31 December 2020 will need to apply for settled status. The application involves three key steps: prove their identity; prove they live in the UK; and declare that they have no serious criminal convictions. Pilot schemes have already been implemented and the scheme will be fully open by 30 March 2019. The deadline for applications is currently scheduled for 30 June 2021, although the timescales may change if there is a no-deal Brexit. The government has recently announced that the application fee of £65 is to be abolished, and those who have already paid will be refunded.
Public sector employers will need to review their EU workforce and consider what support they can offer to demonstrate that they value their EU staff and assist them in applying for settled status. A number of employers are holding workshops to inform staff and are offering use of facilities and equipment to make applications.
Following on from the changes to the taxation of termination payments introduced in April last year, from 6 April 2019 all termination payments over the £30,000 threshold will be subject to Class 1 NICs.
Employers should note that there currently remains no date for the implementation of the new public sector exit payment framework, which introduces the cap of £95,000 on exit payments and the obligation to repay such payments in certain circumstances. These changes have been anticipated since 2017.
The government’s response to the Women and Equalities Committee’s report Sexual Harassment in the Workplace was published on 18 December 2018. It makes a number of recommendations, including the introduction of a statutory code of practice, and confirms the launch of a number of consultations, for example into the use of confidentiality and non-disclosure agreements.
There is as yet no date for the implementation of any of the measures, although it is expected that some will come into force later in 2019.
Good Work Plan
In December 2018 the government published its Good Work Plan, setting out “the biggest package of workplace reforms for over 20 years”. The plan proposes increased rights for atypical workers such as agency workers and those employed in the gig economy, and greater enforcement of employment rights. While these proposals will not come into force before 2020, we can expect to hear more about the government’s plans in 2019.
October 2019 will see the next significant development in the long line of holiday pay cases as the Court of Appeal will hear the employer’s appeal in Flowers v East of England Ambulance Trust. Flowers considers the question of whether voluntary overtime should be included in holiday pay.
This case will be of most significant interest to employers within the NHS as it turns on the interpretation of section 13.9 of Agenda for Change, the national terms and conditions for employees in the NHS. However, it is also of wider interest as it considers the increasingly thorny question of when overtime is worked with sufficient regularity to be deemed ‘normal remuneration’ for the purposes of holiday pay.
Late 2019 will also bring the final step in the long-running Uber litigation. Uber having been granted leave to appeal against the Court of Appeal’s ruling in late 2018 that its drivers are workers. Uber BV v Aslam is one of many cases that focuses on the gig economy; however, the issue of worker status is key for all employers, particularly those who use fragmented workforce models, eg, agency workers or outsourcing, and will be highly significant for public sector employers.
Other cases to watch out for include the appeals in the cases of Capita Customer Management Ltd v Ali and Hextall v Chief Constable of Leicestershire Police. In these cases, the EAT came to different conclusions as to whether it is discriminatory to offer enhanced maternity pay but only statutory shared parental pay. It is to be hoped that the Court of Appeal will provide some clarity on this question.
Finally, employers in the health and social care sectors in particular will await the Supreme Court’s decision in Mencap v Tomlinson-Blake, which deals with the question of whether workers on sleep-in shifts are entitled to the national minimum wage for the duration of their shift.
Victoria Watson is a partner and head of employment and Sarah Parkinson a professional support lawyer at Capsticks LLP