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18th January 2019

Looking Back, Going Forward

As we embark on another year, we have taken the opportunity to reflect on employment law highlights from the past 12 months and to consider what we should expect in 2019.

What can we take from 2018?

GDPR: new principles for the protection of personal data

Undoubtedly the biggest development of 2018 was the General Data Protection Regulation (GDPR) coming into force. It has overhauled the previous data protection regime with the aim of improving compliance (such as introducing explicit consent and much more severe penalties), prompting employers of all sizes to review their own data protection policies and ensure appropriate practices are in place to satisfy the GDPR. Coincidentally, in the same year the case of WM Morrison Supermarkets plc v Various Claimants highlighted the significance of employers reviewing their data security measures after the supermarket giant was liable for an ex-employee’s disclosure of staff personal data online.

Can a worker refuse to provide a service on grounds of religion or belief?

The Supreme Court’s ruling in Lee v Ashers Baking Co Ltd and others suggests that there may be some (albeit narrow) circumstances in which a worker can refuse to provide a service where they profoundly believe that to do so is contrary to their beliefs. This is contrary to established case law which has until now entitled employers to take a dim view of such refusal.

Supreme Court rules on employment status

The gig economy was prevalent last year, with deliberation of employment status in cases involving the likes of Uber and Deliveroo (which is to continue this year, see below). However, the key employment status case last year was the Supreme Court’s ruling in Pimlico Plumbers Ltd and another v Smith that a plumber whose employer labelled him as “self-employed” was in fact a worker, largely due to the company’s “tight control” over him, the requirement to provide services personally and the restrictive covenants in existence.

Sleeping on the job: revisiting National Minimum Wage requirements for sleep-in carers

Sleep-in care workers are not entitled to national minimum wage while asleep, the Court of Appeal controversially ruled in Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another. While this was understandably a welcome decision for employers in the care sector who potentially faced paying out significant sums in claims for backdated pay, employers cannot relax just yet as the case is expected to reach the Supreme Court.

What can we expect in 2019?

Good Work Plan: employment reform for atypical workers

Employment law reform will be a hot topic in 2019 following the publication of the government’s Good Work Plan at the end of 2018. It was introduced in response to the Taylor Review on working practices and is promised to be “the biggest package of workplace reforms for over 20 years”. It intends to legislate to improve working conditions for atypical workers, such as zero-hours and agency workers. While many of the changes are not expected to come into force until 2020, we will keep you updated of developments as they are announced this year.

Supreme Court to consider whether Uber drivers are workers

The issue of the gig economy continues to be prevalent this year with calls to improve the clarity of employment status tests. We can also expect the Supreme Court to hear the appeal in Uber BV and others v Aslam later this year, after the Court of Appeal held that Uber drivers are workers.

First judicial decision on perceived disability under the Equality Act 2010

In February, the Court of Appeal will hear the first case to directly address the issue of direct discrimination based on perceived disability under the Equality Act 2010 (Chief Constable of Norfolk v Coffey).

Guidance on the construction of non-compete restrictive covenants

The Supreme Court will consider an appeal involving the construction of a restrictive covenant (the first of its kind to be determined by the Supreme Court in over a century). It will review the Court of Appeal’s decision in Tillman v Egon Zehnder Ltd, which deemed the non-compete covenant to be impermissibly wide and therefore unenforceable.

Introduction of itemised pay statements for all workers

As of 6 April 2019, the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 introduces a right for all workers to be provided with an itemised pay statement, which should include the number of hours paid for workers who are paid hourly. Workers will have the ability to enforce this right at an Employment Tribunal.

Of course, this is only a small snapshot of what can be expected from the upcoming year- not to mention the potential impact of Brexit- so watch this space…