ESP Law director Sarah Dillon assesses the four legal highlights to watch out for over the next 12 months.
1. Surge in tribunal cases following fees’ abolition
There has been a surge in tribunal cases since fees were abolished by the Supreme Court in July 2017. In the past two years, our customers would probably receive one claim every two months; now it’s more than two a week. The increase in claims seems to be placing a strain on the tribunal system, too. In December 2017, we lodged a defence to a claim at one of the tribunal centres and we did not receive an acceptance of our defence until six weeks later. Normally we receive an acceptance of the ET3 within three to five days. For another claim lodged in December, the hearing has been scheduled for late 2018; before the abolition of fees, the hearing would have been likely to be listed in March 2018.
The Supreme Court left the door open for fees to be reintroduced, but at a much lower level. I believe it might be two or three years before this happens and this will depend very much on the particular political party in power at the time. My worry is that the tribunal system might be at breaking point by the end of 2018 and this may force the government to take some action.
The abolition of fees has changed some of our advice to customers, and the advice that HR professionals should be giving to their directors and organisations. Previously, in a borderline situation where there was a risk a dismissal may be found to be unfair, the company may have decided to dismiss the employee and take a risk because it was unlikely that the employee would pursue a claim. Now HR advisors need to be more cautious, and advise their organisations that if they decide to dismiss an employee, for example, there is a real risk the employee will take a claim to tribunal. HR teams need to be much more aware of the commercial, financial and reputational implications of their decisions.
2. Case law expected to set new precedents
There are three main areas of case law to watch out for in 2018. First up are two cases concerning the employment status of individuals who provide services on a self-employed basis. If some self-employed individuals are found to be workers rather than self-employed, this gives them additional rights such as paid time off for holidays under the Working Time Regulations. In February, the Supreme Court will hear an appeal from Pimlico Plumbers, while the Court of Appeal will hear an appeal from Uber.
Another important case is The Sash Window Workshop and another v King, which concerns a self-employed worker who did not take any annual leave because his employer would not pay his leave. This case was referred to the European Court of Justice (ECJ), and the ECJ said that where an employer actively refuses to pay holiday pay and therefore the worker has been deterred from taking that holiday, then the employee is allowed to claim all of the previous years’ holiday. This means holiday pay claims from people who have been declined annual leave could be back-dated to 1998 when the Working Time Regulations first came into effect. We’re now waiting for a decision from the Court of Appeal on this case, which we hope to receive in the spring.
Finally, the case of the Christian bakery in Northern Ireland that refused to make a cake with a gay pride symbol on it (Lee vs Ashers Baking Company and others) will be heard by the Supreme Court in late April/early May 2018. This case is representative of the balancing act between the competing rights of individuals with protected characteristics under the Equality Act 2010 that is always present in employment law; this case involves the rights of the bakery’s client on the grounds of their sexual orientation, but also the rights of the employer/employee to practice their religion how they want to practice it.
3. Shared parental leave could be simplified
When SPL was first introduced in April 2015, it took us a long time to get our heads around it – and we work in employment law. Ordinary employees don’t understand it, they think it’s too complicated, and just don’t use it.
The Department for Business, Energy and Industrial Strategy (BEIS) has committed to reviewing the rules for shared parental leave (SPL) in 2018. I would expect the review to find that the rules are overly complicated, and recommend it is simplified to improve employee take up.
4. Brexit paralysis is set to continue
When it comes to employment law, Brexit is very much a ‘wait and see’ situation. There has been lots of debate about what might change; regulations such as TUPE are expected to be amended, the Agency Worker Regulations are widely expected to be repealed, and also the calculation of holiday pay would be likely to be high on the government’s agenda if we exit the EU. Currently the UK won’t exit the EU until March 2019 and so there’s not a lot that will change in the immediate future from a legal standpoint.