As the evenings draw in and there is a definite chill in the air, employment lawyers and HR professionals alike begin to take stock of the recent changes to employment law, and look to what 2016 might have in store. We have set out below a summary of some of the key changes and important tribunal decisions over the past few months.
Cap on back payment of Holiday Pay Claims (July 2015)
A sigh of relief to be heard all round following the introduction in July 2015 of a cap on the back payment of holiday pay, following the flurry of recent decisions on how employers should calculate holiday pay (which is still not entirely clear-cut). Employers were becoming increasingly concerned about the potential liability they may incur, going back for many years, in respect of the incorrect calculation of holiday pay, however, for claims brought on or after 1 July 2015, the law has changed to limit holiday back pay claims to two years.
We will continue to keep you informed as to any further developments in respect of the calculation of holiday pay, but if you have any questions, please do contact one of our Employmentor Team.
Fit for Work (September 2015)
First launched in late 2014, the Government’s “Fit for Work” Scheme is now fully operational and has been rolled out across the country from September 2015. In brief, the Fit for Work Scheme entitles employers to make use of two new services:
- Free health and work advice via its website and telephone helpline; and
- Free referral for an occupational health assessment for employees who are off work for four weeks or more.
Whilst employees will ordinarily be referred by their GP, it is open to employers to make the referral once the employee has reached four weeks’ sickness absence. There is also a tax exemption for employers in respect of medical treatments offered to employees up to the value of £500 per employee per year.
This is certainly something for employers to consider in relation to any employees who are off work for this length of time, although we would recommend that you contact one of our team if you are in any doubt as to how to manage sickness absence.
Changes to the National Minimum Wage (October 2015)
Increases to the National Minimum Wage from 1 October 2015:
- The standard adult rate increased to £6.70;
- The rate for workers between 18 and 20 increased to £5.30;
- The rate for workers between 16 and 17 increased to £3.87; and
- The rate for apprentices under 19 increased to £3.30.
Safety Helmets for Sikhs (October 2015)
Also from 1 October 2015, the right for Sikhs to wear a turban instead of a safety helmet has been extended to apply to almost all workplaces. There are some limited exceptions, including certain roles in the military and the emergency services.
Associative Discrimination
Most employers are aware of the additional responsibilities and obligations they have in respect of employees who have a “protected characteristic” for the purposes of the discrimination law. Employers might also be aware that, in some cases, employees who are “associated” with someone who has a protected characteristic can also bring discrimination claims. 2015 has seen some interesting cases which have developed this area, effectively widening the protection for such employees. Here are some useful examples:
- An employee is dismissed for taking time off to look after her disabled husband. Even though she is not disabled, this is likely to be discriminatory.
- An employer requires all staff to work on Saturdays. One employee refuses, on the basis that his wife is Jewish, and even though he is not Jewish, he wants to respect her beliefs. His dismissal could be discriminatory (although could be objectively justified).
- An employee overhears a colleague making offensive homophobic remarks to a gay colleague. Whilst he himself is not gay, he is offended by this. He is likely to be protected against harassment.
- An employee discovers that a colleague brought a Tribunal claim for sexual harassment against her line manager. When the line manager finds out she knows about this, he dismisses her. This is likely to be victimisation.
It is also worth remembering that, at least for now, the duty to make reasonable adjustments only applies to employees who are disabled, and does not apply to employees who are associated with someone with a disability. This is a notoriously complex area of employment law and if you have any questions about whether or not these obligations apply please do contact one of our Employmentor team.
Travel Time
A big headline this autumn was in relation to workers who do not have a fixed place of work, namely that the time spent travelling between home and their first and last customer/client of the day will count towards “working time”. This is likely to have a significant impact on those businesses who employ such workers in relation to their working hours and potentially pay. Such businesses may also wish to consider putting in place practices such as monitoring travel time to avoid potential abuse of this new rule.
What’s Next?
As we have touched on above, the position with what is and what isn’t included in the calculation of holiday pay is still far from clear. Holiday pay has now been deemed to include commission, guaranteed overtime and (potentially) non-guaranteed overtime. One of the relevant decisions is due for appeal next month, and we are hopeful that this may bring some further guidance on how to calculate the inclusion of commission and other payments into holiday pay. 2016 may also bring some clarification in respect of whether or not bonuses should be included in the calculation of holiday pay, (currently they are not). So it’s a case of …. ‘Watch this Space’.
Finally, subscribers to Employmentor may have heard about the introduction of so-called “Grandparental Leave”. Just when you thought that the position with Family-Friendly Rights had been clarified, the Government have confirmed that there will be another change, this time entitling grandparents to take Shared Parental Leave (and Pay), although this is not likely to come into force until 2018.
Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.
