So much for a quiet few months over the summer!

So much for a quiet few months over the summer! At a time when Parliament is in summer recess and traditionally the courts are very quiet this summer has provided some highly significant legal developments.

The end of the road for Employment Tribunal fees

In a momentous decision the Supreme Court ruled on 26 July 2017 that the charging of fees in the Employment Tribunal and Employment Appeal Tribunal is unlawful. Considering an application made by Unison, the Supreme Court concluded that the fees have prevented access to justice. The Court noted that since the introduction of fees on 29 July 2013 the fall in the number of Tribunal claims (estimated at over 70%) has been so substantial and sustained as to warrant the conclusion that a significant number of people had not pursued claims because the fees were unaffordable.

The government has implemented an immediate stop on the charging of fees and all fees paid since 29 July 2013 are to be reimbursed. Details of how this will operate in practice are awaited.

Employment Tribunals across the country are (unofficially) reporting a significant increase in Tribunal claim numbers. Will they reach the same peak seen during the recession from 2007 onwards or has there been a culture change? Watch this space!

 Employment status debate continues

Following numerous cases in recent months, the likes of Uber, Pimlico Plumbing and City Sprint have all incurred significant cost after wrongly classifying staff as self employed. The subject of the “gig economy” remains headline news with the publishing of the Taylor Review on modern employment practices. Numerous recommendations have been made around the use of self-employed contractors and proposed changes to legislation. Any business using workers and contractors as well as permanent employees should be reviewing their workforce status now.

 Holiday pay and voluntary overtime

The latest in a string of test cases on the question of holiday pay calculations has confirmed that voluntary overtime pay should be included. Many employers have been watching and waiting for developments on this question, arguing that it was not clear from the earlier cases that voluntary overtime must be included. In Dudley Metropolitan Borough Council v Willetts and others UKEAT/0334/16 the EAT concluded that voluntary overtime pay, out of hours stand by payments and call out payments should be included in pay for the 4 weeks “Euroleave”. Interestingly in this case there was no obligation for workers to accept the offer of overtime or to participate in the on call rota. The EAT found however that it was sufficiently regular or recurring to qualify as normal pay and should therefore be included in the holiday pay calculation.

BBC in the spotlight over gender pay gap

The BBC have been under the spotlight this summer after publishing details of exactly how much they pay their presenters. It would seem that hardly a day has gone by this summer without another article in the newspapers on the subject with presenters highlighting the significant gap in pay between male and female presenters. Whilst the gender pay gap reporting requirements do not require other employers to publish their data in such detail, it has kept the issue firmly on the front pages. The recent victory for female ASDA store employees in their landmark claim for equal pay with male distribution centre employees will only serve to keep this a hot topic for months to come.

Is your business ready for GDPR?

As the government debates the Data Protection Bill this month, we move closer towards the introduction of the General Data Protection Regulations from 25 May 2018. The new rules impose far stricter requirements on the processing of data. All businesses should be auditing their data processes now and ensuring that privacy notices are updated to comply with the new rules. Don’t leave it too late!

Catherine Parkinson

22 September 2017

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