Employment Updates Summer 2017

Employment Updates Summer 2017Removal of tribunal fees, holiday pay to include voluntary overtime and more. Employers need to know these latest employment updates.

GDPR – 25th May 2018!!

One of the main employment updates affecting all businesses with or without employees is the General Data Protection Regulation (GDPR). This new Regulation is effective on 25th May 2018. Many small and medium sized employers are simply just not taking the GDPR on board. The GDPR will mean a significant impact all businesses, yet many are unaware of choosing not to acknowledge it.

Just a reminder of what it is:

This is one of the employment updates that requires employer compliance from the implementation date! It’s all about personal data employers process on employees and customers.

It is a significant change to the Data Protection Act 1998. Employers obligations will increase, fines will increase to 4% of worldwide turnover or €20m for a breach.

Personal Data

Individuals will have increased rights, this means your employees and your customers. Essentially any ‘personal data’ you process will be covered by the GDPR if it can identify an individual.

Personal data – means any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier (cookies, IP addresses, mobile device ID’s) or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person.

Data subjects, likely to be your employees and customers have the right “to be forgotten”. The definition of Sensitive Personal Data will be extended under the GDPR, do you know what the new definition is and how you should comply with it?

Do you know who should be involved in preparation for the GDPR – here’s a clue, it’s not just the HR function, do you really have the resources and time to prepare?

Do you know:

  • If you are legally required to appoint a Data Protection Officer?
  • How to manage a formal process if your employee decides they wish to assert the right to “be forgotten”
  • How do you plan to defend an employment tribunal claim and you have deleted all the data on an employee who requested you delete their data?

Holiday Pay Should Include Voluntary Overtime.

Other key employment updates include what should and shouldn’t be included in holiday pay. This has been quite a hot topic in recent years. In the case of Dudley Metropolitan Borough Council v Willetts and others, the Employment Appeal Tribunal (EAT) held that voluntary overtime should be included in holiday pay.

What employers should know

The EAT is the first binding appellate authority to decide that ‘entirely’ voluntary overtime should be included in holiday pay. This does not necessarily mean that the odd hour or two of overtime will have to be included in the calculation for holiday pay.

As an employer, you will need to determine if the overtime you offer to employees is sufficiently “regular and settled” and if it is, it is likely to be required as part of the holiday pay calculation.

Additionally, this was extended to include regular out-of-hours standby payments and call-out allowances.

The EAT said that the overarching principle is that holiday payments should “correspond to the normal remuneration received by the worker”, as endorsed in Williams and others v British Airways plc [2011] and Lock v British Gas Trading Ltd [2014].

Pay Awards

Not an employment update as such but rather an information provision:

  • Pay awards ran at 2% for the first six months of 2017.

The average total pay which included bonuses was £487 a week for May 2017. In February 2008 the figure was £522 according to the Office for National Statistics (ONS).

Employment Tribunal Fees Quashed

Who would have thought that the employment updates would include the removal of employment tribunal fees? The Supreme Court has held that the legislation that introduced the fees must be quashed having found the requirement for claimants to pay a fee to lodge an employment tribunal claim as unlawful.

However, the Supreme Court did not explore the mechanics of the abolition of the fees system. This was left up to the Ministry of Justice.

What employers should know

Whilst employers have seen a significant decrease in employment tribunal claims against them since the introduction of the fees in 2013, the risk of an employment tribunal claim is now extremely likely to increase.

Employers need to ensure their internal HR processes and procedures are up to date and communicated to all. Additionally, managers must be aware of the removal of employment tribunal fees and aware of the increased risk of a claim from disgruntled employees.

As it stands employees require 2 years’ service to make a claim for unfair dismissal (remember to include their notice period). However other claims such as discrimination do not require any qualifying period and this includes candidates that apply for jobs within your business regardless of if they are successful or not.

Could You Manage An Employment Tribunal Claim?

Consider the time, the hassle, the cost and the potential impact on your business if you find yourself presented with an employment tribunal claim. If you have never really considered HR important or viewed it as a direct cost that adds little value to your business, now is the time to refocus and realise that a good HR function will add value in many ways. HR is not about reacting to employee issues if you embrace the true value and purpose of strategic HR management.

Discrimination Remedies

Another of those employment updates includes an increase to the Vento bands.  The Presidents of the Employment Tribunals are currently seeking views on increasing the Vento bands from £1000 to £42,000.

Injury to feelings in cases of discrimination attract a monetary value as determined by the Vento bands. There are 3 bands, bottom, middle and top. The value ranges from £660 to £33,000.

Taylor Review

Taylor was commissioned by the Government to review modern employment practices. This was following concerns over the stability of some forms of “gig economy” working. Examples being Uber and Deliveroo.

As expected the report has attracted criticism those protecting workers rights, trade unions and employment solicitors who believe the report has failed to extend the protection sufficiently for “gig economy” or atypical workers.

It is currently a hot topic with respect to employment status that individuals hold and recent cases have found in the favour of them and awarding “worker status”.

Those individuals deemed to be employees benefit from a wider range of employment rights than those of a “worker” status. Workers receive the national minimum wage, sick pay, holiday pay and the right not to be discriminated against.

Taylor identified that “while work has become more flexible, too often learning and skills does not match this flexibility”.

Taylor identified 7 principles to ensure “fair and decent work”

  1. A “national strategy for work” to provide goal of good work for all, with the government being accountable and businesses also embracing responsibility
  2. Worker status to be renamed “dependent contractor” status and a clear distinction between these individuals and those who are genuinely self-employed
  3. Employment law and the way it is enforced should help businesses to make the right choices and enable individuals to know and exercise their rights
  4. Responsible corporate governance, good management and strong employment relations, not more employment law, are the best way to achieve better work
  5. It is vital that individuals feel they have “realistically attainable ways to strengthen their future work prospects”, whether through formal learning or on-the-job activities
  6. The shape and content of work and individual health and well-being are strongly related. Businesses should take a more proactive approach towards workplace health, given that “the shape and content of work” and well-being are closely related; and
  7. Employers in different sectors should form sectoral strategies to ensure individuals are not stuck at national living wage level and are able to progress in their careers.

Some of the recommendations employers should know

  • Legal tests to identify ‘worker status’ should be clear and not reliant on case law
  • Platform working should be managed sensibly in respect of working time. Piece-rate legislation should incorporate a minimum of 20% increase on the national minimum wage for output
  • There should be an increased ‘temporary cessation’ between assignments to a month (currently one week). This would allow better access to employment rights to ‘gig workers’ and ‘dependent contractors’
  • Written statements should be issued on day one, currently it is within 2 months of commencement
  • Workers should also have the right to guaranteed hours after a 12 month period when working under a zero hour contract
  • There should be a higher national minimum wage as a result of no guaranteed hours with a contract
  • Increase the 12 week reference period to 52 weeks for calculating holiday pay capturing peaks and troughs more accurately

Paid Parental Bereavement Leave

A new law introduced to Parliament on 19th July 2017, The Parental Bereavement (Pay and Leave) Bill will provide grieving parents the right to statutory paid leave to grieve over the loss of a child.

The Bill is to receive its second hearing in October 2017.

Currently, a grieving parent would have a “day one” right to unpaid time off work. Time off would be to deal with an emergency involving a dependent. The time off is what is deemed to be reasonable.


If you require further advice or wish for onsite HR consultancy to help you manage the demands of the GDPR please contact us on 01455 231982 or 07716 918272.

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