UK employment law 2020: what’s on the horizon?

From likely UK case law developments to changes to annual leave calculations and employees’ entitlement to written statements of particulars, ESP Law’s team of legal experts look ahead to what 2020 has in store for employment law

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From likely UK case law developments to changes to annual leave calculations and employees’ entitlement to written statements of particulars, ESP Law’s team of legal experts look ahead to what 2020 has in store for employment law  

Political developments aside, 2020 looks set to shake up some key areas of UK employment law practice, including employees’ entitlement to written statements of particulars and annual leave calculations. Employers and HR teams in particular will need to be on their toes to ensure they keep pace with the forthcoming changes.  

 

Case law decisions 

We are awaiting some key Supreme Court decisions in 2020, which will hopefully provide employers with greater clarity on fundamental issues of employment law.  

February 2020 will see the Supreme Court considering in Royal Mencap Society v Tomlinson-Blake whether employees performing sleep-in shifts are engaged in “time work” for the duration of the shift, or whether they are merely available for work rather than actually working.  

The distinction is crucial – the national minimum wage (NMW) is only payable for periods that are correctly classified as “time work”. The outcome of the case will have significant implications for employers, not least those operating in the care sector who potentially face costly claims for back pay.  

Uber BV and others v Aslam and others is due to be heard in July 2020 and will address the recurring issue of employment status in the gig economy. Uber is appealing against an earlier ruling finding that its drivers are workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.  

The firm will inevitably be hoping the Supreme Court finds favour with the dissenting opinion delivered by Underhill LJ in the Court of Appeal – namely, that contractual documentation between Uber and its drivers is “neither unrealistic or artificial” and should not simply be disregarded. The judgment is keenly awaited.  

 

Written statements of particulars  

Employers are currently obliged to provide employees with a written statement containing certain statutory particulars, no later than two months after their employment begins.  

However, the implementation of the UK government’s Good work plan means that, from 6 April 2020, this information – and more – will need to be given in a single statement, to both workers and employees, prior to any contract commencing. Here’s an overview of the changes that employers need to be aware of: 

  • The majority of written particulars must be provided in a single document on or before the date on which employment starts  
  • Exceptions relate to pensions, collective agreements, training, and disciplinary and grievance procedures, information about which must be given in the first two months. 
  • Sick pay, paid leave, pensions and any training entitlement can be in a separate document but referred to 
  • There will no longer be any minimum service requirement. A written statement of particulars is now a ‘day one’ right 
  • The statement must also now contain the following additional particulars: 
  • The days of the week the worker is required to work, whether the hours may be variable and how any variation will be determined 
  • Details of any paid leave to which the worker is entitled 
  • Details of any other benefits provided by the employer that are not already included in the statement 
  • Information about any probationary period, including any conditions and its duration 
  • Information about any training entitlement provided by the employer, including whether any training is mandatory and/or must be paid for by the worker 

 

Annual leave calculations 

The Good work plan also set out key changes with respect to holiday pay, deriving from recommendations made by in Good Work: the Taylor review of modern working practices, which was published in July 2017.  

Holiday pay entitlement 

The UK government has said it will launch a campaign to boost awareness of holiday pay and rights among employers and individuals. This will include new guidance produced in association with Acaswith real life examples to support the interpretation of holiday pay rules. 

This is likely to have a significant effect because, while employment lawyers and HR professionals understand the obligations surrounding annual leave, many employees and workers remain in the dark. The outcome of the 2019 UK general election may affect this, but it is likely to go ahead in some form or another. 

Changing the reference period 

The UK government has already committed to increasing the reference period for determining an average weeks’ pay from 12 weeks to 52 weeks. This aims to assist workers who do not have a regular working pattern throughout the year, or whose income varies significantly on seasonal commission.  

Typically, these are workers that have previously suffered as a result of having to take their holiday at a quiet time of the year, resulting in a lower weekly payrate being calculated for their annual leave.  

For workers who have not worked for 52 weeks, the entire period of service will be considered. This change will result in a true average for all workers and will mitigate the effect of seasonal fluctuations, which may be easier for HR teams to manage 

 

Changes to the SRA rules  

The Legal Services Board has recently approved sweeping regulatory reforms proposed by the Solicitors Regulation Authority (SRA) under its Looking to the Future programme. The changes, which took effect on 25 November 2019, include: 

  • Creating separate codes of conduct for firms and individual solicitors 
  • Simpler account rules that focus on the principles of keeping client money safe 
  • Enabling solicitors to carry out ‘non-reserved’ legal work from within a non-legally regulated business 
  • Allowing solicitors to provide reserved legal services on a freelance basis 

The last two points could, at last, provide some real catalyst for change. Until recently, solicitors in non-legally regulated firms have not been allowed to provide commercial advisory services to either the public or to businesses. However, they are now able to reside within a non-legally regulated business and offer a wide range of support, otherwise known as ‘non-reserved’ legal work, such as employment law advice – with the exception of one or two very specific instances.  

Similarly, solicitors can now operate on a freelance basis, offering further choice as to who, and where, clients engage legal services from.  

Anna Bradley, chair of the SRA’s board, said: “Our new regulations place a sharp focus on the high professional standards that we and the public expect, while allowing solicitors greater freedom in how they deliver their services. That can only be good for both the public and the profession.” 

It remains to be seen if these changes will accelerate much-needed change in the legal market and lead to a greater choice of options for savvy HR teams looking for legal support. 

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