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2017 was a big year for employment law and HR issues. In July 2017, the Supreme Court held that tribunal fees are unlawful. Since then, the official employment tribunal statistics have shown a 64% increase in claims, and it is likely that this upwards trend will continue in 2018. Several important ET and EAT cases on the so-called gig economy were decided, and the Taylor review was published, making various recommendations to overhaul the law on employment status. Towards the end of 2017, the news was dominated by successive sexual harassment scandals, and many employers are taking the opportunity to overhaul their own policies in this regard. Finally, hanging over all of this is the ongoing uncertainty over Brexit. Although various compromises have now been reached, for example in relation to the settled status of EU nationals who will have been continuously resident in the UK for 5 years on the date of exit, 29 March 2019, politicians have been quick to caveat that “nothing is agreed until everything is agreed”.

In the wake of these developments it is no wonder that 2018 is shaping up to be an equally interesting year for employment law, even if much of the detail is still up in the air.


As already noted, the only thing certain about Brexit at this point is that nothing is certain. Although stage one of the negotiations have concluded with agreements on the right to remain of EU nationals in the UK on the date of Brexit in place, these can still be altered in the second phase of negotiations. There is also no agreement yet on how immigration from the EU will be handled post Brexit, and the extent to which there will be trade agreements in place in relation to goods and services is, as yet, unclear. Although the current timeline for reaching a final deal on Brexit has been set by the European’s Chief Negotiator as October 2018, it remains to be seen whether this is realistic. We will continue to provide updates on Brexit’s effect on employment law throughout the year.

Data Protection Overhaul

The General Data Protection Regulation takes effect from 25 May 2018 and the Data Protection Bill which is currently progressing through the House of Lords is due to replace the existing Data Protection Act and implement the GDPR. This will bring about changes in relation to the rights of individuals to access their personal data, the “right to be forgotten”, processing of personal data, reporting of breaches of security, and will also give the information commissioner the ability to impose larger fines for breaches of the law.

We recommend that in advance of the GDPR coming into effect, employers undertake a review of what data they hold, how it is held, and why it is necessary to process the data. It may then be necessary to amend procedures and policies to ensure compliance with the new rules when these come into force. For more details see our previous Insight on the GDPR, or get in touch with one of our team members.

Worker Status

Although the Government had initially said they would respond to the Taylor review by the end of 2017, this has been pushed back and is expected in 2018.  It remains to be seen whether meaningful reform of law on employment status will be announced.

Several appeals in key worker status cases, such as Pimlico Plumbers Ltd v Smith and Uber BV and others v Aslam and Others are also due to be heard in 2018. Watch this space for any developments.

Gender Pay Gap Reporting

The Gender Pay Gap Regulations came into force on 06 April 2017, and affected employers (those with 250+ employees) in the private and voluntary sectors must publish their first report by 04 April 2018, including mean and median average hourly pay figures for men and women, and the proportion of men and women in four pay quartiles, as well as details on payment of bonuses and any gender pay gap in relation to these. Just as interesting as looking at the statistics will be reading the accompanying narratives that most employers will likely choose to publish to give context to the numbers.


From 6 April 2018, the treatment of termination payments for taxation purposes will change. All payments in lieu of notice (PILONs) will be subject to income tax and national insurance contributions.

Also in April 2018, the National Living Wage and National Minimum wage rates will increase. The increases will be:
• from £7.50 to £7.83 per hour for workers aged 25 and over (the National Living Wage)
• from £7.05 to £7.38 per hour for 21-24 year olds
• from £5.60 to £5.90 per hour for 18-20 year olds
• from £4.05 to £4.20 per hour for 16-17 year olds
• from £3.50 to £3.70 per hour for apprentices aged under 19 or in the first year of their apprenticeship.

Several cases which we have previously reported on will have their appeals heard this year. The Supreme Court is due to release its judgement in Lee v McArthur and Ashers Baking Company Ltd, which examines whether a Christian bakery’s refusal to bake a cake with the slogan “Support Gay Marriage” was directly discriminatory. See our previous coverage on this case here.

The key holiday pay case of Sash Window Workshop Ltd v King will be heard in the Court of Appeal after the European Court of Justice issued a decision in November 2017 that a worker is entitled to be paid for all periods of annual leave accrued during the engagement where the worker was discourage from taking the leave because it would have been unpaid. It also held that there is no time limit on the period for which the worker can claim. As explained by our Insight piece on the ECJ decision, this will have serious consequences in instances where workers have been wrongly classified as being self-employed rather than workers. 

The Court of Appeal is also due to hear the appeal in Focus Care Agency Ltd v Roberts and others, which will provide guidance on how to assess whether an employee should be regarded as working when they are required to be present at work, even if they are sleeping for all or part of this time.

The Stronachs Employment Team will keep you updated on these and other changes throughout the year. In the meantime, if you have any queries about any of the issues mentioned in this Insight piece please get in touch with a member of our team.

Annika Neukirch, Solicitor

Chambers UK 2018

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