Following last May’s election of the first majority Conservative Government in 18 years, it will be of no surprise that 2016 promises to be a year of significant change in the field of employment law. Whilst many of the changes coming into force have been in the pipeline since the time of the Coalition Government, we highlight below some of the key changes you should look out for in 2016.
Implementation of the National Living Wage
From 1 April 2016 the Government will introduce a compulsory minimum wage premium for all workers aged 25 years or over, which will be referred to as the ‘National Living Wage’ (NLW). This will increase the minimum wage for staff aged 25 and above from £6.70 an hour to £7.20. It is envisaged that the NLW will be set at 60% of median earnings by 2020. This would mean a rise to around £9 per hour by 2020.
Gender pay gap reporting
By 26 March 2016, the Government is required to introduce provisional gender pay gap reporting regulations, requiring employers with 250 or more employees to publish their gender pay data. In November 2015, the Women and Equalities Minister, Nicky Morgan MP indicated that gender pay gap reporting would be extended to bonus information and to public sector employers.
The Trade Union Bill
The controversial Trade Union Bill will continue its progression through Parliament.
The Bill will see some of the most fundamental changes to strike balloting since the 1980s. In addition to the current requirement of 50% of responding trade union members voting in favour of strike action, a 50% minimum turnout threshold will be required. The threshold requirements are even more onerous for those employed in important public services: before strike action can take place in those sectors, at least 40% of those trade union members eligible to vote must approve strike action.
The Bill also introduces more onerous obligations on striking workers, including the appointment in advance of a picket of a picket supervisor who must inform the police of their name and how they may be contacted as well as the time and place of the strike. Along with other measures, the picket supervisor must wear an item of clothing, for an instance an armband that allows others to identify them as the picket supervisor.
As part of the Bill, the Government is considering lifting the ban on allowing employers to hire agency workers to perform work normally completed by striking workers during industrial action. The Government’s consultation into the hiring of agency workers closed on 9 September 2015 and we are still awaiting the Government’s formal response.
Greater restrictions on the employment of foreign workers
Under the Immigration Bill, the Secretary of State will be given the power to introduce an “immigration skills charge”, payable by those employers recruiting skilled workers from beyond the European Economic Area. Specific details, notably the cost of the immigration skills charge itself, have not yet been announced but it is envisaged that the charge will be used to fund training and apprenticeships.
The Immigration Bill will also introduce a requirement that all public sector workers operating in a customer-facing role must speak fluent English.
Whistleblowing: Does a disclosure have to be of interest to the public as a whole?
In the 2015 case of Chesterton Global Ltd and anor v Nurmohamed, the Employment Appeal Tribunal (EAT) interpreted the Enterprise and Regulatory Reform Act 2013 (“the 2013 Act”), in such a way as to potentially allow a greater number of claimants to claim the protection of whistleblowing legislation. The 2013 Act had made it a requirement that only disclosures made “in the public interest” may receive the protection of whistleblowing legislation.
In a somewhat surprising decision, the EAT concluded that it was not necessary to demonstrate that the disclosure was of interest to the public as a whole. Indeed, it was possible that a disclosure affecting a relatively small section of the public, notably a section of a workforce, could be interpreted as being “in the public interest”.
Chesterton Global Limited has appealed to the Court of Appeal. This key whistleblowing case is due to be heard in October 2016.
Should holiday pay include overtime and commission?
The area of holiday pay, commission and overtime is a hot topic.
In the 2015 case of Lock v British Gas Trading Ltd, the Employment Tribunal ruled that Working Time Regulations 1998 should be interpreted in such a way, as to require employers to take into account commission when calculating holiday pay for workers with normal working hours.
This decision followed the decision of the Court of Justice of the European Union (CJEU) in the same case that the EU Working Time Directive should be interpreted as precluding an employer from calculating a worker’s holiday pay exclusively by reference to basic salary, when the worker in question is in receipt of commission as a consequence of sales. To do otherwise might discourage the worker from taking annual leave as they would be at a financial disadvantage during the annual leave period.
British Gas appealed to the EAT and the appeal was heard in December 2014. The EAT is expected to give its ruling in three or four months’ time.