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17th December 2015

Expected Employment Law Developments in 2016

As 2015 draws to a close, thoughts turn to the challenges which may face us in 2016.

Although there are currently no known proposals for wide ranging reform of employment law and practice, there are developments which will require employers and HR professionals to keep their wits about them in the next 12 months.

Legislation

National Living Wage – currently set at £7.20 per hour and applying to all adults aged over 25 will come into force on 1st April 2016, representing a rise of 50p per hour relative to the current National Minimum Wage rate.

Zero Hours Contracts – the Zero Hours Workers (Exclusivity Terms) Regulations 2015 come into force on 11th January 2016. The Regulations enable employees on zero hours contracts to claim unfair dismissal, without the need for any qualifying period of service, if they are dismissed for failing to comply with an exclusivity clause in their contract. There will also be protection for employees and workers subjected to a detriment on the same grounds.

Gender Pay Gap Reporting – the obligation on private sector employers with 250 or more employees to collect and publish information about their gender pay gap is likely to become law. It appears possible that the requirement for that to become a legal obligation by 26th March 2016 will be missed, but draft regulations are expected early in 2016.

Modern Slavery and Human Trafficking – commercial organisations with a global turnover of more than £36m will have to prepare a slavery and human trafficking statement for each financial year stating what steps it is taking to ensure that human trafficking does not take place in any of its supply chains or its business; or state that it has taken no such steps.

Immigration – a new Immigration Act is expected to come into force in October 2016 which will impose new sanctions on employers found to be employing workers who do not have the right to work in the United Kingdom, including an increase in the current maximum period of imprisonment from 2 to 5 years and the ability to close down the employer’s business for up to 48 hours for the employer to demonstrate that right to work checks have been conducted on its workforce.

Trade Unions – the Trade Union Bill 2015-16 is likely to become law in 2016 bringing about changes to the balloting rules for industrial action and measures on picketing, facility time and political donations as well as additional powers for the Certification Officer.

Case Law Developments

Holiday Pay - Lock v British Gas Trading Limited – the long running saga on how to calculate holiday pay (this case relates to commission payments) returned to the Employment Appeal Tribunal in December 2015 with the judgment due in 2016. The issue in dispute at that hearing was whether commission and non guaranteed overtime were different concepts, dealt with under different provisions, and should not therefore be conflated in the calculation of holiday pay. In particular it is argued that the decision in Bear Scotland (which relates to overtime payments in the context of holiday pay) should not affect the outcome of Lock.

Whistleblowing – Chesterton Global v Nurmohamed – following the 2013 change in the law which provided that a disclosure is not protected unless the employee reasonably believes that the disclosure is being made ‘in the public interest’ there have been a number of cases where the Employment Appeal Tribunal have taken a very liberal interpretation of what amounts to the public interest. Essentially what may be thought of as private law matters, namely employees contracts of employment, can engage the public interest requirement provided that they affect a number of employees, rather than just one. Chesterton will be heard by the Court of Appeal in order to decide whether or not that liberal interpretation of ‘in the public interest’ is correct.

As ever the Hewitsons Employment Team will be on hand to advise and guide you through these and any other issue which 2016 may throw up.

For further information please contact Clare Waller on 01223 461155 or click here to email Clare.

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