2019 has seen some important cases decided already and with plans to reform employment law already in the pipeline, 2019 will surely be another busy year for employment law. We have already reported on the increase to statutory employment payments such as maternity pay and sick pay in April 2019 and have discussed the consultation on extending redundancy protection for women and new parents but what else might you have missed this year so far and what do you need to look out for?
PERSONAL LIABILITY OF DIRECTORS
Despite the generally held view that directors of a limited company cannot be held personally responsible where they are acting on behalf of the company, the High Court in the case of Antuzis v DJ Houghton has confirmed that the directors in this case were personally liable for breaches of the employment contracts of their staff. The decision was made on the basis that they did not honestly believe they were paying the minimum wage, overtime and holiday pay and were not entitled to withhold payments in the manner in which they did.
INJURY TO FEELINGS AWARDS IN DISCRIMINATION CASES
For claims presented on or after 6th April 2019, the bands for injury to feelings awards, known as the Vento Guidelines, have been revised as follows:
Lower Band - £900 to £8,800 (previously £900 - £8,600) (for less serious cases)
Middle Band - £8,800 to £26,300 (previously £8,600 - £25,700) (for cases that do not merit an award in the Upper Band)
Upper Band - £26,300 to £44,000 (previously £25,700 - £42,900) (for the most serious cases)
In the case of Crawford v Network Rail Infrastructure Ltd, the EAT confirmed that the requirement under the Working Time Regulations 1998 to provide workers with at least a 20 minute break if they are working more than 6 hours could not be satisfied by someone taking a series of shorter breaks that when added together amounted to at least 20 minutes.
However, the case was appealed to the Court of Appeal and was heard in November 2018. The judgment handed down in March 2019 (https://www.bailii.org/ew/cases/EWCA/Civ/2019/269.html) restored the Employment Tribunal’s original decision that compensatory rest does not always need to be taken in a block of 20 minutes and will come down to the impact on the well-being of the employee in question. It’s therefore recommended to undertake an assessment of the benefit to the employee but this will only apply in special cases and for the majority of employees, employers should continue to ensure that their employees and workers are allowed to take uninterrupted breaks of at least 20 minutes.
GIG ECONOMY AND WORKER STATUS
This area of law continues to develop and 2019 has already seen cases decided including a self employed contractor who provided accountancy services (through a partnership with her husband) to a company for 27 years and was found to be an employee, having received a quarterly ‘exclusivity payment’ (Exmoor Ales Ltd & Another v Herriot). With Uber’s case on worker status due to be heard by the Supreme Court, this is something no employer can afford to ignore if it wants to remain legally compliant and clear about the status of its workforce.
USE OF NON DISCLOSURE AGREEMENTS (NDA)
Arguably in response to high profile cases involving sexual harassment including Harvey Weinstein and Bill Cosby, the government has issued a consultation document in relation to proposals to prevent the mis-use of NDAs in situations of workplace harassment and discrimination. It is seeking views on whether it is necessary to ban confidentiality clauses and NDAs that prevent someone from reporting or discussing potentially criminal acts with the police and whether confidentiality clauses should be included in the information that must be provided within a written statement of particulars of employment given to an employee at the start of the employment relationship. The consultation is due to close on 29th April 2019.
2019 has also seen various codes of practices and guidance already issued and updated including:
Updated Code of Practice on Preventing Illegal Working issued by the Home Office to set out the checks that employers should carry out in order to avoid a civil penalty in the event of illegal working.
Guidance on Age Discrimination from ACAS, including advice on how to manage an age diverse workforce and prevent unfair treatment.
THE (OTHER) ELEPHANT IN THE ROOM – BREXIT!
If the elephant in the room last year was GDPR, this year, it is certainly Brexit! So the 29th March 2019 came and went and we are now looking at a new deadline of 31st October 2019 to leave the European Union (the irony of this being Halloween and a celebration of all things ghostly and ghoulish has not missed!).
The impact that Brexit will have on the world of employment law remains to be seen but if we crash out of the European Union with no deal, this will certainly open the door for changes in employment law that are currently based on European Directives and cases and could include the following:
Changes to the restrictions on harmonising contracts of employment after a TUPE transfer;
The requirement to collectively consult with staff, particularly in redundancy situations;
Abolition of the Agency Workers Regulations and specifically the rights for agency workers after 12 weeks service; and
Changes to the Working Time Regulations and specifically the decision to include travelling to and from home as working time for those employees with no fixed place of work, the 48 hour working week limit and the calculation of holiday pay that following numerous cases over the last few years has resulted in holiday pay now including commission, compulsory non-guaranteed overtime and standby payments.
For more information on any of the above or to discuss your employment needs generally, please contact Julie Edmonds, Head of Employment, by email: firstname.lastname@example.org,or by telephone 0207 644 7286 or contact her on LinkedIn.