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16th January 2019

Legal Issues – What to expect in 2019

Now that the fun of the Christmas and New Year period is over, and we’re in the middle of gloomy January, many of us will be looking forward to longer days and warmer weather.

We too at Navigator are looking ahead, not only to brighter times but also in terms of what to expect from employment law in the coming year. We have summarised the main developments below, to allow you to get ready.

Brexit

At the time of writing, there has still been no answer as to whether we will leave the EU with or without a deal, or indeed whether we will leave at all. While that leaves many questions unanswered, we have been given an indication as to the rules that will apply in relation to EU nationals who wish to stay in the UK if Brexit goes ahead.

The government has long used five years’ residence in the UK as the time frame for the right to apply to remain here indefinitely, and it will continue to do so. In short, EU nationals who have been in the UK for that long will be able to apply for ‘settled status’ (indefinite leave to remain). Those who have been here for less time can apply for ‘pre-settled status’, which gives them a temporary right to remain. When they have reached the five-year mark, they can apply for settled status accordingly.

At the moment, with a ‘deal’ Brexit in mind, the deadline for applications will be 30 June 2021, provided that the individual was living in the UK on or before 31 December 2020. Whether those dates will change in the event of a ‘no deal’ Brexit remains to be confirmed, but it is expected that the deadline for entry into the UK will be brought forward to 29 March 2019.

Pay

April 2019 will bring the usual increases to statutory pay rates, including the national minimum wage (from 1 April) and family-related pay such as maternity pay (from 6 April).

The national living wage, payable to those aged 25 and over, will increase to £8.21 per hour, in line with the government’s plan for that rate of pay to reach £9 per hour in the next few years. Family-related pay will increase from £145.18 to £148.68 per week, or 90% of earnings if that is lower.

We will also see a new requirement for employers to provide workers with itemised payslips, including a breakdown of the hours worked, from 6 April 2019. Currently this applies to only employees, but opening up the rule more widely is part of the government’s aim to improve the rights of workers. More information on the government’s plans can be found here.

Pensions

Changes to auto-enrolment come into effect on 1 April. From that time the minimum contribution rate for employers will be 3% and the employee minimum will be 5%.

Gender pay gap reporting

Employers with 250 or more employees had to publish their pay gap figures for the first time by 4 April 2018, and for some it was a time-intensive process. The second round of reports will be due again for many around the same time this year, and while it may be easier this time around if you need only update your spreadsheets, there is some added pressure now that there will be figures to compare against.

The main intention behind the Gender Pay Gap Regulations is not merely to shame employers (although that is arguably a large part of it), but to encourage employers to take steps to reduce the pay gap. As such, many employers who had significant pay gaps last year may now be under the spotlight to explain what they have done (if anything) to reduce their gap.

Case law

We’ve seen a number of interesting discrimination questions come up in the employment tribunals recently, many of which are the subject of appeals or further scrutiny.

For example, it was decided that a belief in Scottish independence is a protected philosophical belief, which could allow a former Ministry of Defence employee to sue for discrimination. The Ministry has since applied for a reconsideration of that decision, which has been accepted.

In a similar vein, an ethical vegan (someone who chooses not to use any animal-derived product, such as wool) has claimed that he was dismissed due to his beliefs. His ability to claim discrimination will also hinge upon whether his stance on veganism is a protected belief.

Our 2018 updates on those cases can be found here.

Differences between maternity pay and shared parental pay have also been the focus of several cases in the last few years, with conflicting decisions. Most recently, the employment appeal tribunal decided that enhancing maternity pay but not shared parental pay for a man was not direct sex discrimination, as we reported here. That decision is also being appealed, and it is hoped that we may also get an answer as to whether it may constitute indirect sex discrimination, as that question has not yet been answered.

We will of course issue individual updates on developments as they occur, but in the meantime if you have any questions on any of the issues mentioned in the above article please contact Seanpaul McCahill.

16th January 2019