UK Employment Hub 

The Labour Party has made it clear that it will not support the ‘Great Repeal Bill’ in its current form. It was reported last week that at least 15 Conservative MPs are in talks with a group of Labour MPs about a deal which could keep the UK signed up to the principle of free movement after it leaves the EU.

The deal has been described as a ‘Norway-style deal’. But what does that actually mean?

Under the proposed plan, the UK would remain part of the single market post-Brexit, as a member of the European Economic Area (the EEA). It would continue to benefit from free movement of goods, without applicable customs fees. However, unlike EU member states which are bound by a common trade policy, under the proposed plan, the UK would have the freedom to negotiate its own free trade agreements with non-EU countries. In exchange, the UK would be required to apply largely the same free movement of people principles as EU member states.

Whilst per capita UK contribution to the EU would fall, there would still be a ‘fee’ involved in being a member of the EEA.

From the roughly 23,000 EU laws currently in force, the EEA has incorporated around 5,000 (roughly 21 per cent). If the UK joins the EEA, a number of EU policy areas would continue to apply to it, including financial services, social and employment laws, and energy and climate change policies. While the EEA Agreement includes provisions for non-EU members to be consulted on new legislation, the UK would lose its right of veto in the European Council.

Even though details of the Great Repeal Bill have now been published, it’s all still speculation as to what happens in the Brexit negotiations and what our relationship with Europe will look like going forward. Whilst there is a general consensus that our employment legislation will remain largely unaffected by Brexit, what happens to our immigration model is still anybody’s guess.

Stay tuned to our Blog for all employment and immigration Brexit updates.

Zero-hours contracts remain controversial and, last month, fast food chain, McDonald’s, confirmed that it will offer its workforce of 115,000 a choice as to whether to work fixed hours or remain on their zero-hours contracts. McDonald’s had previously trialled this arrangement and they found that only around 20% of staff chose to move to fixed hours, with the majority preferring the flexibility of the zero-hours arrangement.

There has been speculation that, inspired by the McDonald’s arrangement, Matthew Taylor’s highly anticipated review on the gig economy is likely to recommend a new right for workers on zero hours contracts to secure a guaranteed number of hours. It is expected that the right will be structured in a similar way to the right to request flexible working, with the employer maintaining the right to refuse the request for specific statutory reasons only.

The Labour party has pledged to ban zero hours contracts completely but the McDonald’s experience suggests that there may still be a place for them in the modern working environment.

With just over three weeks until the General Election, the parties are getting ready to pack a punch. It seems that workers’ rights are high on the political agenda and likely to feature in all the main manifestos, official versions of which are (at the time of writing this post) yet to be released.

Prime Minister May has set out 11 key employment-related pledges and, not only has she guaranteed that all workers’ rights currently offered under EU law will be maintained in spite of Brexit, she has also committed to building on these entitlements. Amongst other things she has pledged that the national living wage will rise “in line with average earnings by 2022”. Her “new deal for workers” is also likely to include a statutory right to a year’s unpaid leave to care for a relative, two weeks’ statutory bereavement leave in the event of the death of a child, “better rights for workers in the gig economy”, and a commitment that workers’ pensions will be given new protections from “irresponsible behaviour” by bosses.

The Labour Party and the Greens are committed to increasing the minimum wage to £10 per hour. Both Labour and the Liberal Democrats have pledged to end the 1 per cent pay cap on public-sector pay and to ensure that these workers receive pay rises in line with inflation if they win the election. Indeed Labour’s manifesto is due to boast a 20-point plan, including a pledge to scrap employment tribunal fees, banning zero hours contracts, repealing the Trade Union Act 2016 and introducing four new UK-wide bank holidays. And there’s also a focus on family friendly rights, with both Labour and the Liberal Democrats having made commitments to extend paternity leave entitlement.

Following the recent introduction of gender pay gap reporting, the Conservatives and the Liberal Democrats have both said that they would bring in mandatory reporting on ethnicity gaps for organisations with 250 employees or more.

What seems to be apparent from the pledges is that there is in fact a significant overlap between the parties’ positions on worker rights. Whatever happens at the General Election on 8 June, we can expect to see some significant developments in employment law over the course of the next term.

April is a key month for employment law changes and this April is no different. 6 April is “D-Day” for a number of significant changes. By way of reminder:

1 April

• National minimum wage – the National Living Wage (for workers aged 25 and over) increased from £7.20 to £7.50 and there were also changes in the other bands.

Weeks commencing after 2 April

• Cap on a week’s pay  – the cap on a week’s pay (which is used in statutory redundancy pay calculations for example) increased from £479 to £489.

5 April and onwards

• Gender pay gap reporting – employers with 250 employees should have collated their relevant data on the first annual “snapshot date” yesterday. Today the work on calculations can begin! Private employers have a 12 month window (4 April 2018) before calculations must be published on the employer’s website and the relevant government website. Remember that public sector employers have a earlier snapshot date (31 March), their calculations need to be published by 30 March 2018 and every four years thereafter.

From 6 April

• Unfair dismissal compensatory award – the statutory cap increases from £78,962 to £80,541.  Don’t forget that the cap will be one year of the employee’s gross salary if lower.
• Apprenticeship levy – UK employers in the public and private sectors with annual wage bills of £3 million or more have to pay their monthly levy payments;
• Immigration skills charge – employers who sponsor workers under tier 2 will have to pay £1,000 per year, or £364 if they are a small employer or a charity;
• IR35 – new rules apply to public authorities paying personal service companies or other intermediaries. The public authority will need to make tax and National Insurance deductions as appropriate;
• Salary sacrifice – relief on benefits in kind provided via salary sacrifice arrangements is being scaled back for benefits entered into from today.

As part of the government plans to reduce Britain’s reliance on migrant workers, from 6 April 2017 employers may have to pay an immigration skills charge of £1,000 per employee.

The skills charge will apply to a sponsor of a Tier 2 worker assigned a certificate of sponsorship in the “General” or “Intra-Company Transfer” route and who applies from:

• outside the UK for a visa
• inside the UK to switch to this visa from another
• inside the UK to extend their existing visa

The skills charge does not apply if you are sponsoring:

• a non-EEA national who was sponsored in Tier 2 before 6 April 2017 and is applying from inside the UK to extend their Tier 2 stay with either the same sponsor or a different sponsor
• a Tier 2 (Intra-Company Transfer) graduate trainee
• a worker to do a specified PhD level occupation
• a Tier 4 student visa holder in the UK switching to a Tier 2 (General) visa
• Tier 2 family members (“dependants”).

As the charge applies to the sponsor and not the individual, if a sponsor has paid it in respect of an individual who then seeks to change sponsor, the new sponsor will also be required to pay the levy.
A lower rate of £364 per certificate of sponsorship applies for smaller sponsors and charities. You will usually be considered a small business if:

• your annual turnover is £10.2 million or less
• you have 50 employees or fewer

The charge is in addition to all other application fees. Its purpose is to cut down on the number of businesses taking on migrant workers and to incentivise employers to train British staff to fill those jobs.

This week new limits applying to certain awards of employment tribunals, and other amounts payable under employment legislation, have been increased.

The increases apply where the event giving rise to the entitlement to compensation or other payments occurred on or after 6 April 2017. Limits previously in force are preserved in relation to cases where the relevant event was before 6 April 2017.

Key new relevant limits are as follows:

• Minimum basic award in cases where a dismissal is unfair by virtue of health and safety, employee representative, trade union, or occupational pension trustee reasons: Old limit – £5,853; New limit – £5,970
• Limit on amount of guarantee payment payable to an employee in respect of any day: Old limit – £26.00; New limit – £27.00
• Limit on amount of compensatory award for unfair dismissal: Old limit – £78,962; New limit – £80,541
• Maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment or for various awards including the basic or additional award of compensation for unfair dismissal: Old limit – £479; New limit – £489

Following our post on 22 December 2016, “2016: A year of discontent?” the Trade Union Act 2016 (Commencement No. 3 and Transitional) Regulations 2017 SI 2017/139 have been confirmed and the main provisions of the Trade Union Act 2016 are set to come into force on 1 March 2017.

The key provisions coming into force on 1 March 2017 include:

• a 50 per cent turnout requirement for all ballots;
• the requirement that 40 per cent of those entitled to vote must do so in favour of industrial action in “important public service” ballots (including the health, education, transport and border security sectors);
• new rules on information requirements, including the requirement for a clear description of the trade dispute and the planned industrial action on the ballot paper;
• an extension of the notice required for strike action from seven to 14 days; and
• restrictions on “check-off” arrangements which require unions to make a reasonable contribution to the costs of administration.

You can find the full regulations here.

Following our post on 1 December 2016, “National Living Wage to increase by 4 per cent in April“, the draft National Minimum Wage (Amendment) Regulations 2017 have now been published.

The draft Regulations are intended to come into force on 1 April 2017 and will increase the National Living Wage from £7.20 to £7.50 per hour. The new National Living Wage for workers aged 25 and over came into force on 1 April 2016, and is a premium added on to the National Minimum Wage.

The National Minimum Wage rates will also increase in April as follows:

• Workers aged 21 to 24: £6.95 to £7.05 per hour
• Workers aged 18 to 20: £5.55 to £5.60 per hour
• Young workers aged under 18 but above compulsory school age who are not apprentices: £4.00 to £4.05 per hour
• Apprenticeship rate: £3.40 to £3.50 per hour

From 6 April 2017 those applying to come to the UK to undertake certain jobs, along with their adult dependants, will be subject to the requirement under the Immigration Rules to produce a criminal record certificate. The certificate must be produced from any country in which they have been resident for 12 months or more, consecutively or cumulatively, in the previous 10 years, aged 18 or over.

From January 2017, sponsors must start informing prospective employees at the point they assign their Certificate of Sponsorship that they may become subject to this requirement by the time they make their application. This will enable them to begin seeking certificates where needed at the earliest opportunity, and to lodge a complete application for entry clearance sooner.

Affected job titles are:

• Health services and public health managers and directors
• Social services managers and directors
• Medical practitioners
• Psychologists
• Pharmacists
• Ophthalmic opticians
• Dental practitioners
• Medical radiographers
• Podiatrists
• Health professionals not elsewhere classified
• Physiotherapists
• Occupational therapists
• Speech and language therapists
• Therapy professionals not elsewhere classified
• Nurses
• Midwives
• Further education teaching professionals
• Secondary education teaching professionals
• Primary and nursery education teaching professionals
• Special needs education teaching professionals
• Senior professionals of educational establishments
• Education advisers and school inspectors
• Teaching and other educational professionals not elsewhere classified
• Social workers
• Probation officers
• Welfare professionals not elsewhere classified.

The requirement to produce a criminal record certificate already applies to those applying under Tier 1 (Entrepreneur) or Tier 1 (Investor) and any adult dependant relative of the main applicant in either of these categories.

2016 has been a turbulent year and it seems to be going out with a bang, in what some have dubbed a “winter of discontent”. According to recent BBC analysis, in the first 10 months of the year 218,300 working days were lost to industrial action. We’ve seen a week of industrial action from rail workers and postal workers, and airlines are also anticipating disruption over the festive period. It’s been reported that Weetabix employees have voted to strike in the new year, so it doesn’t look things are going to slow down.

This is in a year where the Government amended trade union legislation to increase ballot thresholds, introduce new information and timing requirements in relation to industrial action, and impose legal requirements on unions for the supervision of picketing. However, the key provisions of the Trade Union Act 2016 have not come into force as yet and the Government has not set out any specific timetable for implementation.

Current legislation in force provides that industrial action will be unlawful unless at least 50% of trade union members who responded to the ballot voted in favour of the action. When the relevant provision of the new Act is brought into force, in addition to a majority being in favour of the action, unions will be required to show that at least 50% of all eligible members have voted.

Notwithstanding the new legislation, transport minister, Chris Grayling, and a number of other Tory backbenchers, have called for additional anti-strike laws. It’s not clear what such new laws would actually entail but Downing Street has been quick to distance itself from the calls, instead putting its faith in the power of negotiation and stressing that Parliament has already passed legislation to provide people with better protection from undemocratic industrial action. It looks like ACAS, the organisation devoted to preventing and resolving employment disputes, is going to be having a very merry Christmas.