2017 represented a sea change in the Employment Tribunal system and 2018 looks set to be another busy year for HR and employment law practitioners.

Over the coming year the true impact of the abolition of tribunal fees on the number of claims is likely to be felt. As well as the expected increase in the number of claims and the need to grapple with the new refund scheme, many involved in litigation are still getting to grips with the practical implications of the new online database of employment tribunal decisions. More on both these developments is available here.

2017 was of course marked by the number of high profile cases in the news concerning sexual harassment. Sadly, this may only be the tip of the iceberg and this will undoubtedly be an area for employers to consider proactively in 2018. Indeed, media reports indicate the EHRC recently sent out letters to various large employers to request evidence of how they are tackling sexual harassment in the workplace and indicating that where the EHRC discovers systematic failings or a refusal to engage it may take appropriate action. Specifically in the charity sector, following a number of serious incident reports, the Charity Commission recently issued an alert to charities highlighting the importance of providing a safe and trusted environment and of safeguarding those who come into contact with a charity (including beneficiaries, staff and volunteers). The recommendations include a reminder to trustees to ensure their safeguarding policies, practice, and performance are robustly and regularly reviewed to ensure they are up to date and fit for purpose. Broader recommendations from the Charity Commission are expected in 2018 following a number of particular case reports. Employers also enter 2018 with new ACAS guidance outlining what kind of workplace behaviours could be considered sexual harassment. Employers should ensure steps are taken to make staff clear about what sorts of behaviours are unacceptable, and how complaints will be addressed.

Looking forward to the year ahead, it is hard to escape discussion around Brexit and the much anticipated General Data Protection Regulation (“GDPR”).

The outlook on the former is of course one of considerable uncertainty and it is difficult to make accurate predictions about Brexit-related employment and immigration developments (a recent article on the latter by Philip Trott, Partner in Immigration, is available here though negotiations are continuing). Updates and details of future Brexit related events will be sent to those on our mailing list (to be added to list, please sign up here).

With just months until the GDPR comes into force (on 25 May 2018), many HR professionals will be in the final stages of their preparation to manage the transition to the new data management and processing rules. For those HR professionals seeking further practical support, BWB is running an employment focused GDPR webinar in early 2018 (for more detail contact us). In addition, BWB’s final session in our “Countdown to the GDPR” is taking place on 27 February 2018 (sign up available here). Although complex, the GDPR introduces a number of opportunities for employers to improve their current systems and practices.

As in 2017, developments in the gig economy are likely to remain a hallmark of the year ahead with the upcoming Supreme Court hearing in the case of Pimlico Plumbers Ltd v Smith (February 2018), and also the Uber case due to be heard at the Court of Appeal within 2018.

In 2017 the Court of Justice of the European Union (yet again) reminded practitioners that holiday pay is a central European right that cannot be given a narrow interpretation. The ECJ reference from the case King v Sash confirmed that where a worker has been discouraged from taking leave because it would have been unpaid, there is no limit to the amount of carry over[1] and the worker will be entitled to be paid in lieu on termination for untaken holiday for the entire period. The further Court of Appeal decision in this case following this ECJ reference is awaited with much anticipation. This ECJ decision raises the stakes for employers who have misclassified the status of their workforce, and may well lead to an increase in the number of “worker” status claims going through tribunals. Moreover, whether this ECJ decision is compatible with the current limitations on the “unlawful deductions from wages” regime (a vehicle for historic holiday pay claims) remains to be seen. These arguments are undoubtedly going to be the focus of litigation in the near future.

Another anticipated development for 2018 is of course the publication of the first mandatory gender pay gap reports. For large private and voluntary sector employers the first reports are due by 4 April 2018. Large public sector employers must report by 30 March 2018.

Despite the considerable uncertainty and undoubted challenges ahead, the outlook for employers in 2018 should not be seen as bleak. The ability to hold protected conversations with employees (in appropriate circumstances) remains a valuable recourse for employers, as does the settlement agreement regime. There was concern this time a year ago that the £30,000 tax exemption for certain payments on termination of employment was going to be abolished, but 2017 brought confirmation that this proposal was not being taken forward.  The limit of one year’s gross pay[2] in ordinary unfair dismissal compensation continues to provide proportionality in outcomes – and expectations – in many cases. 

2018 will undoubtedly be a busy year, with both challenges and opportunities for employers.



[1] This applies to the 20 days holiday derived from EU law, and not the additional days under Regulation 13A of the Working Time Regulations.

[2] The cap is the lower of 52 weeks' pay or the statutory cap (currently £80,541)


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Hannah Wright

Solicitor

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+44(0)2075517843

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h.wright@bwbllp.com
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Posted on 10/01/2018 in Legal Updates

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