What’s next on the agenda for employment law?

6) Public sector exit payments

New provisions – introducing a cap of £95,000 on exit payments and requiring repayment where an individual earning over £80,000 receives a payment and returns to the public sector within 12 months – were due to be implemented in 2016 but were delayed. We expect them to be introduced in 2017.

7) The Trade Union Act 2016

This will introduce major changes to the balloting rules for industrial action and a new balloting threshold for important public services, as well as other provisions. We expect the Act to be implemented this year.

8) Immigration skills charge

Employers who sponsor foreign workers with a tier 2 visa will have to pay an annual charge of £1,000 per worker (£364 for small employers and charities) from April 2017.

9) Minimum wage changes

Increases to the national minimum wage and the national living wage will be aligned from April 2017, with changes to both taking effect on the same date. On 1 April, the national living wage will rise to £7.50 per hour and the adult rate of the national minimum wage will be £7.05 per hour.

10) Key cases

We end with a handful of key cases to watch out for this year:

The gig economy – self-employed or workers? In November 2016, an employment tribunal (ET) held that Uber taxi drivers were not genuinely self-employed and were, in fact, workers (meaning they benefitted from worker rights, including the right to paid holiday and the national minimum wage). Given the potential ramifications for Uber (and the gig economy more generally), the company appealed the decision and the Employment Appeal Tribunal is expected to hear the appeal later in 2017.

Holiday pay – we could not have a ‘cases to watch out for’ section without mentioning a pending holiday pay case. Following the Court of Appeal’s decision that UK law could (and indeed had to) be interpreted to give effect to the European Court of Justice (ECJ) decision that holiday pay should include contractual results-based commission, British Gas has lodged an appeal to the Supreme Court. No date has yet been set for the appeal to be heard, although it is likely to be some time in 2017. Given the direction of travel in holiday pay cases and the clear view of the ECJ in the Lock litigation, we suspect this further appeal is unlikely to be successful.

Ban on Muslim headscarves – the ECJ is considering its decisions in two separate cases concerning bans on the wearing of Muslim headscarves at work and whether such bans amount to direct discrimination. Last year saw two starkly conflicting opinions from two Advocate Generals on this point and it will be interesting to see how the ECJ rules on this controversial issue. The judgments are expected shortly.

Employment tribunal fees – Unison’s appeal against the Court of Appeal’s decision in its judicial review action against the Government in relation to the introduction of ET fees is due to be heard by the Supreme Court in March.

Whistleblowing – the Court of Appeal is due to hear Chesterton Global Ltd vs Nurmohamed in June, where the issue is whether it is necessary to show that a disclosure was of interest to the public as a whole in order to bring a whistleblowing claim.

Overall, 2017 promises to be a busy and interesting year in employment law.

Natasha Robson is an associate at national law firm Bond Dickinson

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