What’s New in Employment Law?


New cases and developments constantly shape the world of employment law, which can make it difficult for employers to keep up. Croner, The MIA’s trusted HR and employment law partner, outline the key cases and main changes to have recently taken place for businesses to note…

New Laws Crack Down on Misuse of Non-Disclosure Agreements

Non-disclosure agreements (NDAs), or ‘gagging clauses’, have been under intense scrutiny on account of stories that they are used to cover up workplace abuse. In response, the government has promised new legislation to tackle the misuse of NDAs, which includes:

  • Employers using NDAs will need to explain the limitations of any agreement to their staff in ‘plain written English’ to ensure they have a full understanding of what they are signing.
  • Those signing NDAs will be able to receive further independent legal advice on their rights, including the ability to disclose information to the police, regulated health and care professionals, or legal professionals.
  • New enforcement measures will also be introduced to deal with employers whose NDAs do not comply with amended legislation, which could result in them being held to be void.

Consultation on Increasing Family Friendly Entitlements

“Neo-natal leave” could be made available to parents whose newborn child requires an extended stay in hospital. Suggestions contained in a new consultation also include extending offerings of family friendly leave and improving the transparency around relevant policies.

Amongst a number of suggestions, the government has proposed that extra weeks of “neo-natal” leave should be added on at the end of employees’ maternity or paternity leave to compensate for the time they spent in hospital, meaning a greater overall length of absence from work.

Millions More Workers Could Qualify for Sick Pay Under New Proposals

Two million low-paid workers could receive statutory sick pay (SSP) in the future under the government’s proposals. What could this mean for employers?

  • The payment of SSP is subject to various qualifying criteria, including minimum average earnings of £118 per week. The government has proposed extending payment of SSP to those earning less than this amount.
  • This is likely to create additional costs for employers, especially those with large number of part-time employees. However, a sick pay rebate has been proposed to help smaller employers with the cost.
  • The consultation seeks views on adjusting the rate of SSP to avoid a situation where low-paid employees could potentially earn more money when off sick than when they are in work.
  • Additional statutory guidance has also been proposed to help employers encourage staff to return to work as soon as possible, and employees may also be given the right to request specific changes to their role on health grounds.

Yearly Tribunal Stats Show 27% Increase in Single Claims

The latest employment tribunal (ET) statistics have been revealed, covering the period from January– March 2019, which means we now have a full picture of the key trends for the financial year (April–March 2018/19). This illustrates:

  • 9,505 single claims were received between January-March 2019 which is a 6% increase on the same quarter in 2018.
  • Working time (9,822), unfair dismissal (4,768) and disability discrimination (1,688) were once again popular claims during this quarter.
  • Over 120,000 claims were lodged throughout the financial year 2018/2019 as a whole, with 35,429 of these being single claims.
  • This is a 27% increase in the number of single claims when compared to the previous financial year and is the equivalent of 97 single claims per day.
  • The most popular claims for the financial year were unauthorised deduction of wages (22,151), equal pay (26,860) and working time (49,199).
  • 9% of all claims were successful at an ET during this time, which is a significant number for employers to consider.
  • It is once again crucial that employers understand their legal obligations at work as the removal of fees, coupled with an increased awareness of employment rights amongst workers, continues to influence tribunal activity.

Change to Early May Bank Holiday in 2020

Next year’s Early May Bank Holiday is expected to be moved from the first Monday in May to Friday 8th May across all areas of the UK in honour of the 75th anniversary of VE Day. Wondering if your employees are affected by the change?

  • Time off on Bank Holidays is usually covered as part of an employee’s contractual arrangements and set out in their statement of main terms (SMT).
  • Employees may assume that they will be entitled to a day off on Friday 8th May 2020; but there is no automatic entitlement for employees to have a Bank Holiday off.
  • Employers will have to review the content of the SMT to identify their contractual position on giving employees time off on the moved Bank Holiday.
  • Entitlement to Bank Holidays can be expressed in many different ways and the exact wording of the SMT will need to be analysed to determine whether employees have a contractual right to take the Friday off or not.
  • Employers are encouraged to plan ahead of time and work out a solution that suits their specific business needs, making sure this is communicated to the workforce as early as possible to prevent any confusion.

Factoring Voluntary Overtime into Holiday Pay

The Court of Appeal have recently ruled on the case of East of England Ambulance Trust v Flowers which questioned when voluntary overtime should be included in workers’ holiday pay. Join us as we take a look at the ruling below:

  • The employees worked as part of the ambulance service and argued that payment for voluntary overtime – which they could choose to do or not as they pleased – should have been factored into their holiday pay.
  • The Court of Appeal agreed, stating that voluntary overtime should be factored into holiday pay when it is ‘sufficiently regular and settled’.
  • This decision is binding and represents the highest Court decision on this topic. It will be key in any future disputes on voluntary overtime and holiday pay.
  • There was no further guidance on how to determine if work was ‘sufficiently regular’ or ‘settled’, meaning employers will have to look at the facts of each case when determining holiday pay.
  • Employers should remember that this decision only applies to the first 4 weeks of annual leave in the leave year.
  • The decision could still be appealed to the Supreme Court, so employers may wish to factor this in when considering their position

Expert advice

As part of your membership with the MIA you can speak to a Croner expert for help with any of the above issues and get free in-depth, tailored advice. Email alice@mia.org.uk or call 01403 800500 for the exclusive Business Support Helpline scheme number.