Fri 04 Jan 2019

2019 - What to expect in employment law

Our annual look at what to expect on the employment law front in the coming year.

The introduction in December of the UK Governments Good Work Plan means we know 2019 and beyond is going to be a busy time for employment law.  It is likely that inequalities in the workplace including, but definitely not limited to, sexual harassment will (unfortunately) continue to make the headlines, and that the Courts will continue with the current trend of finding that many so called "self employed" individuals are, in fact, workers.  But what else is in the offing? 

January - March 

January sees the closing of the consultation on mandatory ethnicity pay reporting - something that is likely to be a big story as the year progresses.  The success of gender pay gap reporting (in terms of, at least, highlighting the issue) makes it likely that ethnicity pay gap reporting will follow, although the number of different ethnicities involved will make for some difficult drafting for the legislature. 

The Companies (Miscellaneous Reporting) Regulations 2018 apply from 1 January 2019.  The Regulations, amongst other things, introduce mandatory reporting of the ratios between CEO and average staff pay. 

Subject to variables too numerous to mention, Brexit is due to happen on 29 March 2019.  Depending on the outcome of negotiations this may mean that the Employment Rights (Amendment)(EU Exit) Regulations 2018 and the Employment Rights (Amendment)(EU Exit)(No.2) Regulations 2018 come into force.  Both pieces of legislation make technical changes to legislation to reflect the withdrawal of the UK from the EU but they will only be required in the event of a "No Deal".  More generally, the UK Government has made it clear that workers' rights will be maintained post Brexit, and the Good Work Plan references the enhancement of rights. 

The Presidents of the Employment Tribunals are due to review and if necessary amend the Presidential Guidance on compensation for injury to feelings awards (the Vento bands) in March, with any changes taking effect from April 2019. 


April is often the busiest month of the year for employment law with many changes being implemented including to the National Living Wage and the National Minimum Wage rates.   

With effect from 1 April 2019:- 

  • NLW will increase from £7.83 per hour to £8.21 per hour (for those aged 25 and over)

  • 21 to 24 year old rate will increase from £7.38 per hour to £7.70 per hour

  • 18 to 20 year old rate will increase from £5.90 per hour to £6.15 per hour

  • 16 to 17 year old rate will increase from £4.20 per hour to £4.35 per hour

  • Apprentice rate will increase from £3.70 per hour to £3.90 per hour 

Tribunal compensation limits and many state benefits also change in April. Family friendly benefits are expected to increase to £148.68 per week and statutory sick pay to £94.25 per week.   

In April, we will also see the right to itemised payslips being extended to all workers. In addition, all payslips must state the number of hours being paid where wages vary according to time worked.  

4 April will also see the first anniversary of gender pay gap reporting, and this year scrutiny will very likely be directed not so much on what an organisation's gender pay gap is but rather to what extent it has improved (or worsened) since last year.   

6 April will see the first of the legislation that has been introduced in the UK Government's Good Work Plan taking effect - specifically the increase in penalties for aggravated breaches of employment law from £5,000 to £20,000 as set out in the Employment Rights (Miscellaneous Amendments) Regulations 2019

Later in 2019 and beyond 

Details of further legislative reform during the course of 2018 is sparse, but we already know there is a significant amount more coming in 2020 and, as usual, April will be when much of it takes effect.  This will include the extension of reforms to IR35 (introduced to the public sector in April 2017) to the private sector, the next step in the simplification of termination payments with the requirement for employers to pay NIC's on all payments above the £30,000 threshold and the introduction of parental bereavement leave.   

More of the legislation introduced under the Good Work Plan will also take effect in April 2020 including written statement of particulars from day one for all workers, the removal of the Swedish derogation and the lowering of request requirements to set up information and consultation arrangements.   

Whether new tribunal fees will be introduced seems to be becoming more of a when than an if, but no dates have been mentioned as yet. 

Cases to look out for in 2019  

It is likely that the appeal by Uber against the Court of Appeal decision that their drivers are workers will proceed and this may happen in the next 12 months or so.  Cases looking at the enforceability of restrictive covenants (Tillman v Egon Zehnder Ltd), discipline and performance management (Mattu v United Kingdom), whistleblowing (Royal Mail Group Ltd v Jhuti), constructive dismissal (Agoreyo v London Borough of Lambeth), perceived discrimination (Chief Constable of Norfolk v Coffey), whether enhancing maternity pay but not shared parental pay is discriminatory is discrimination (Capita Customer Management Ltd v Ali), holiday pay for term time workers (Harpur Trust v Brazel) are either due to come before the Courts and tribunals in 2019 or they are awaiting hearing dates which are likely to fall within the next 12 months or so.   

In addition we are awaiting judgements in cases concerning employee monitoring (Lopez Ribalda and others v Spain), comparators for equal pay (Asda Stores Ltd v Brierly & ors), and compensatory rest (Crawford v Network Rail Infrastructure Ltd). 

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