Autumn employment law round-up

Emma Thompson, employment law specialist at Thackray Williams, provides a round-up of the main employment law changes that have recently come into effect, including those taking place from autumn 2017, and explains the action you need to take as a result.

Employment tribunal fees scrapped

Unison won a landmark court case against the government in July 2017 when the Supreme Court found that the government acted unlawfully when it introduced employment tribunal fees in July 2013.

The decision of the court means that, from July 2017:

• those eligible to bring an employment tribunal claim (or appeal) will no longer have to pay a fee to do so; and
• the government will have to refund over £27 million to those charged a fee for submitting a claim to the tribunal since the fees were introduced.

The position of people who have issued claims since July 2013, but who had those claims struck out for non-payment of fees, remains uncertain. The President of Employment Tribunals in England and Wales has ordered that no action be taken in respect of these claims until the Ministry of Justice and Her Majesty’s Courts and Tribunals Service have decided how such claims should be handled in view of the Supreme Court’s ruling.

Commenting on the likely impact for employers, Emma says:

‘The introduction of fees led to a marked decrease in tribunal claims as many would-be claimants could not afford to take action; with the Supreme Court having now ruled that fees are not payable it is reasonable to expect to see an increase in the number of claims being made, at least in the short term, as well as the re-emergence of some claims employers may have thought had been abandoned’.

No National Minimum Wage rise in October

The National Minimum Wage is reviewed every year and traditionally it has been increased on 1 October. However, following the National Minimum Wage being aligned with the National Living Wage, there will be no increase in the National Minimum Wage in October this year; instead both the National Minimum Wage and the National Living Wage will be increased annually on 1 April.

By way of reminder, the current hourly rates are:

• the National Living Wage for workers aged 25 and over is £7.50;
• the National Minimum Wage for 21 to 24 year olds is £7.05;
• the youth development rate for 18 to 20 year olds is £5.60;
• the young workers rate for 16 and 17 year olds is £4.05; and
• the apprentice rate is £3.50.

The accommodation offset limit is £6.40 per day.

Emma comments:

‘As the government continues its crack down on employers who do not pay wages at the correct rate, it is important that you review the rates you are paying to your staff. Records should be kept of dates of birth and procedures should flag up when an increase is required.’

Payment for mobile workers’ travelling time to and from work

In the 2015 case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, the Court of Justice of the European Union ruled that the time that mobile workers with no fixed workplace spent driving to their first job, and driving home from their last job, was ‘working time’ as defined in the Working Time Regulations 1998. This means that you should add in the driving time to and from work to the working hours of anyone within your business classed as a mobile worker and check whether, taking account of this, any of these workers are working more than the 48 hour weekly limit under the regulations. If they are, and it is appropriate to do so, you should consider asking relevant employees to agree in writing to opt-out of the 48 hour working week provision and keep a copy of the agreement on file.

The issue of whether mobile workers should be paid for the time spent driving to their first job and home from their last job was not addressed in the Tyco case, but it was addressed earlier this year by the Employment Appeal Tribunal in the case of Thera East v Valentine. In this case, the tribunal held that just because the travelling time of a mobile worker with no fixed place of work is classed as working time, it does not follow that there is an automatic right for such a worker to be paid for this time. The Working Time Regulations set out issues such as rest periods and maximum weekly hours, but they do not address pay.

In view of the decision in this case, if you have mobile workers you need to decide whether your contracts of employment should provide for time spent travelling to and from work to be paid or not. In either case, you need to make your position clear in your contracts so that workers know from the outset whether payment will or will not be made.

Shared parental leave and discrimination claims

The law on whether an employer is entitled to pay women on maternity leave and men on shared parental leave differing rates of pay remains uncertain following a number of contrasting decisions.

In the 2016 case of Snell v Network Rail the employment tribunal awarded a male employee almost £30,000 because he was only paid the statutory rate of pay during his period of shared parental leave, rather than the enhanced rate offered to women on maternity leave. However, the award was made after Network Rail’s lawyers had advised the company that their policy of paying an enhanced rate to female employees was discriminatory and therefore the Employment Tribunal never actually had to rule on this point.

In the 2017 case of Ali v Capita, a male employee won a direct discrimination claim against his employer on the basis that they offered 14 weeks enhanced maternity pay to female employees, but would only pay shared parental leave at the statutory rate. However, in the 2017 case of Hextall v The Chief Constable of Leicester Police, a similar claim failed on the basis that a father on shared parental leave could not compare himself to a woman on maternity leave.

In view of this uncertainty, you need to review your policies on payments for employees on maternity and shared parental leave and decide, in consultation with your solicitor, the approach you want to take. Remember that where existing policy provisions form part of employees’ contractual entitlements, consultation with employees on any proposed changes is required.

For further advice on any of the issues raised in this article, or for employment law advice more generally, please contact Emma.