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In a change to our normal UK quarterly employment update, to reflect the recent turbulent months, we take a short term look ahead at some of the key employment law developments expected in the coming months of 2020, to help employers start to prepare.

Quarterly UK employment update

Sun / Clouds a short range forecast

   July to December 2020 – short to mid-range forecast

Development Impact on employers
Many employers will be re-opening or preparing to re-open their workplaces following the COVID-19 lockdown. Pressure to do so is also likely to intensify as financial support from Government is reduced in coming months. Detailed operational and risk analysis is needed regarding a return to the workplace. There is also some regional divergence in approach to take into account across England, Wales, Scotland and N Ireland. Employers must assess how and when their staffing and business needs can be accommodated in safe working conditions and in line with Government requirements. There will be many important health and safety requirements but also other changes to the workplace and/or to working arrangements. See our checklists from our “Navigating the challenges ahead: beyond lockdown” series or visit our COVID-19 information hub for UK and global employer guidance.
The UK left the EU on 31 January, entering an 11-month transition period. Although largely obscured by COVID-19, Brexit talks between the UK and EU regarding a future relationship once the transition period ends have continued, albeit inconclusively. Any extension to the transition period must be requested by 30 June 2020. The UK Government has so far ruled out any request for an extension. However, even if Brexit terms are agreed by the end of 2020, it is apparent that talks over the finer detail will continue well beyond that time.
An important issue related to Brexit (above) is future UK immigration policy after the transition period and EU free movement ends. A new UK Immigration Bill is progressing through Parliament. If passed, the Immigration Bill will end free movement and pave the way for a new points-based immigration system in the UK, with points being awarded according to certain criteria, such as having a job offer from an approved employer, and meeting a salary threshold of £25,600. Upfront planning and a review of contingency/ recruitment arrangements will help to minimise disruption.
A SC judgment is expected to decide what counts as work for minimum wage purposes for workers whose role involves “sleep-in” shifts at their place of work. Royal Mencap Society v Tomlinson-Blake. The CA has previously ruled that someone undertaking a sleep-in shift must be awake and working to receive NMW. A reversal by the SC would have significant cost implications for some employers.
The awaited Employment Bill is expected to provide the right to: request a more predictable contract; one week’s unpaid carers’ leave; extended maternity protection on redundancy; protection of workers’ tips; neonatal leave and pay; and to pave the way for the creation of a single enforcement body. Implementation dates are unknown although the pre-COVID-19 Budget (March 2020) anticipated 2023 for the neonatal changes. The introduction of a single-enforcement body could prove significant, especially in light of April’s broadening of the reference period for calculating holiday pay (from 12 to 52 weeks) and increase in the NMW.
In July, a SC hearing will decide whether a group of predominantly female workers in retail stores are able to compare their pay with a group of predominantly male workers based at separate distribution depots for the purposes of equal pay claims. ASDA Supermarkets v Brierley and others. A decision in favour of the retail workers will be significant for the retail sector. However, this hearing relates to the principle of pay, namely whether the roles of the two groups of workers are comparable for equal pay purposes, and is not the final outcome in the litigation. It may be months, or years, before we reach that point.
Also in July, the SC is due to hear Uber’s appeal against the decision that its drivers were “workers”, entitled to holiday pay and the minimum wage. Uber BV v Aslam. If Uber’s appeal is rejected, it will be an important decision for the gig economy and may provide further legal clarification on worker status. Employers should risk assess their workers’ specific circumstances and status.
The SC is expected to hear an appeal on whether trade union legislation has been breached when an employer seeks changes to collective terms without trade union consent, provided it does not ask employees to relinquish collective bargaining. Kostal UK v Dunkley. The CA decided that the employer had not breached the legislation (read our alert). A SC to the contrary will potentially restrict an employer’s ability to change employment terms in a unionised workplace without collective agreement.

Although court determinations are not expected before the end of the year, important cases will be listed before the SC concerning:

  • holiday pay in Chief Constable of the Police Service of Northern Ireland v Agnew and, also, East of England Ambulance Service NHS Trust v Flowers; and
  • discrimination in Efobi v Royal Mail Group Ltd.
The extent of employer liability for holiday pay remains outstanding, particularly whether a three month break acts as a cut off to prior claims. If SC decides the three month rule is unlawful, significant liability for backdated claims could arise. The SC is also due to clarify whether voluntary overtime should be included in holiday pay calculations. Finally, the SC will also clarify the extent to which a complainant must demonstrate their basis of a claim for discrimination.

Look out for our next quarterly update for news on case law and legislative developments expected in 2021. 

NB this update covers England, Wales and Scotland. It does not cover developments that apply only in Northern Ireland.

 

Key        
Key
CA Court of Appeal
ET Employment Tribunal
Gov't The UK Government
NMW The national minimum wage
SC Supreme Court


For further information, please contact:

Diane Gilhooley
Global Head of Employment, Labour and Pensions

dianegilhooley@eversheds-sutherland.com
Tel: +44 207 919 0533

Previous updates

March 2019
June 2019
September 2019