A Year in Review: What 2014 should teach employers about 201505 Feb 2015
2014 was an interesting year for employment law. Statutory discrimination questionnaires have been abolished; tribunals now have the power to ‘fine’ a losing employer up to £5000 (or 50% reduction for early payment); and, thanks to Ms Von Winklehoff, partners now have worker status (in that case for whistleblowing claims).
Here, Kuits Solicitor’s Head of Employment, Kevin McKenna (KM), and Associate Mark McKeating (MM) take a look at the most significant developments from the last year and provide an insight into what we might expect from 2015.
Holiday Pay Claims
What in your opinion has made the biggest impact on holiday pay claims this year?
KM: The holiday pay cases in November generated the most interest amongst employers (view our article here). The primary concerns were around the issue of backdated pay. That is, there were growing concerns that a worker could establish a ‘series of deductions’ from wages, meaning that backdated pay could go back to the inception date of the Working Time Regulations in 1998. How far do you go back?
MM: Our interpretation of the judgement is that a break of three months will help to break the series of deductions; however, a number of points still remain unclear. The government have moved very quickly to respond to this uncertainty by setting up a taskforce. The net result is that it is likely that back pay will be limited to the last two years for any claims served on or after 1 July 2015.
KM: We also wait with interest the outcome of the Lock v British Gas Trading Limited case, which is expected to be considered in the Leicester Employment Tribunal later today (5 February 2015), in relation to calculating commission within holiday pay. The issue for the Tribunal will be to consider if domestic legislation can be interpreted in line with the European Court of Justice’s decision in William and Others v British Gas, insofar as commission should be included in the calculation of holiday pay. The ECJ was concerned that a worker heavily reliant on commission pay may be deterred from exercising their right to holiday if it put them at a financial disadvantage.
What did 2014 teach employers about zero-hours contracts?
MM: You couldn’t keep them out of the news last year. In October, the retailer Sports Direct settled claims brought by a number of employees who were on zero-hours contracts. Labour leader Ed Miliband accused Sports Direct of using Victorian practices. Sports Direct agreed to make it clear in job advertisements, contracts and staff rooms that it does not guarantee work, sick pay or holiday pay in terms on which the vast majority of staff are employed. The use of zero-hours contracts is likely to be scrutinised even further in 2015 by Employment Tribunals.
KM: Employers need to be careful how they manage such working practices. This is tackled in the Conservative manifesto for the forthcoming election, who plan to remove the use of exclusive zero-hours contracts.
Shared Parental Leave
Tell us about the changes made to Shared Parental Leave in 2014.
MM: The new Shared Parental Leave provisions came into force on 1 December 2014. They will apply to the parents of any child born, or adopted, on or after 5 April 2015. In simple terms, the provisions enable mothers to transfer leave they are due after the birth of their child to the ‘father’ (with the exception of the first two weeks of maternity leave). (View our article here)
KM: The outcome of the General Election in May 2015 may shape new employment laws over the next few years. The two main parties remain polarised. The Conservatives are intent on removing red tape for businesses and plan to tighten the laws on voting processes for strikes. However, Labour want to tackle the Employment Tribunal fee system, increase the minimum wage, and improve childcare and benefits.
The Year Ahead
So, what’s in store for employers in 2015?
KM: There were also been lots of positives for employers last year; notably, fewer claims in the Employment Tribunal, which we think will continue on into 2015. I think the increase in the qualifying service (from one to two years) has had an impact, in addition to the fact that Claimant’s now have to pay for claims. We are also not seeing all the calls we take from ACAS in the early conciliation period converting to claims. We’ve just had Unison’s judicial review application hitting the skids, but I don’t think we have seen the last of this, particularly with the general election on the horizon.
MM: There is no doubt that 2015 will continue to surprise. Kuits will be keeping a watchful eye over any developments and, as a matter of course, highlight to clients any changes which will impact their business.
For find out more information relating to any employment issues, please contact a member of our Employment Team by calling 0161 832 3434, or contact us.