Despite initial concerns, Brexit is not set to result in the immediate re-writing of UK employment law. Theresa May has said so in her speech this week (17 January 2017) in when she set out 12 Brexit 'objectives', including a promise to maintain workers' rights. The inside track from BEIS concurs; they are reviewing the UK statute book with the narrow remit of ensuring the status quo can be maintained (and laws continue to have the same effect) in the event of Brexit and the Great Repeal Bill. They are not looking at changes to the substantive law.
However, it remains to be seen how the body of European case law will be dealt with in the future, given that many laws can only be understood by reference to this jurisprudence. How the UK courts are to manage this going forward is something that will need to be dealt with within the Bill.
Immigration law is potentially set for significant change. Although the impact of Brexit on the status of EU workers already in the UK and future mobility remains less than clear, the PM continues to state that there will be 'control' on the numbers of migrants coming from Europe.
Employment Tribunal Reform
The government is currently consulting on proposals for Employment Tribunal reform and this closes on 20 January 2017. Various proposals to modernise and streamline the ET could start to take shape this year. Tribunal fees are also still under review.
Gender Pay Gap
The final version of the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 has been published and are due to come into force in April this year. Thereafter, all employers with over 250 employees will need to report on the gender pay gap within their organisation. Although the first tranche of reports aren't due until 4 April 2018, that snap shot of data will need to include April 2017. This means that any current gap is relevant and reportable and businesses need to be on top of these issues now.
The gig economy and Uber-type businesses continue to pose interesting challenges to the traditional definitions of employment, self-employment and those workers who are neither. The debate over worker status appears to have highlighted a fundamental question as to whether the current legal definitions are out of sync with modern working practices.
The Taylor review of modern employment practices is having a look at these issues. Apparently, there are also discussions with HMRC about aligning the tax approach with the employment definitions. The report is due in June and this is certainly one to watch out for. If significant change is deemed necessary, this could well take the form of new legislation.
Later this year Europe will be delivering up a new Directive on parental /maternity leave and even if Article 50 has been triggered this is set to impact the UK. Although, by contrast with Europe the UK already provided for shared parental in law, there is potential for this Directive to propose further significant change and it will be one to watch out for.
The Trade Union Act 2016 will continue to be implemented through 2017 and 2018 and secondary legislation is being drafted to effect various changes. This is set to be a bumpy journey as, aside from the Parliamentary process of getting the secondary legislation through, the government is bound to face challenge from trade unions, some of which have already indicated an intention to take legal action regarding alleged breaches of Article 11. There is also a difference of opinion with the Welsh Parliament which has introduced its own legislation and a dispute about the jurisdiction to do that.
Other Consultations and proposals
The BEIS update on shared parental leave for grandparents and volunteering leave seems to be ‘wait and see’. It is unclear if these proposals, of the Cameron administration, will be followed through by May’s government.
The response on consultations regarding the hire of agency workers to cover strikes; tipping in service industries and non-compete clauses are all still being considered and we await an update.
Caroline Glacken is a Senior Associate at Constantine Law