Employment law updates 2018: important changes for employers

The latest UK employment law changes for employers, HR professionals and in-house lawyers.

09 March 2018

Employment law is constantly on the move. We keep track of the latest employment law changes so you don't have to. Below you'll find our regular round-up of legislation, case updates and helpful guides. For a list of key dates for 2018 and 2019, see our employment law timeline.

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Employment law updates

Update posted 9 March 2018

Disability discrimination – reasonable adjustments

United First Partners Research v Carreras

Case: Employers may need to consider making reasonable adjustments if there is an expectation or assumption that employees will work long hours and this puts a disabled employee at a substantial disadvantage.

The Court of Appeal has held that an employee who felt he was expected to work long hours by a pattern of repeated requests, which created pressure on him to agree, was capable of amounting to a provision, criterion or practice (PCP) which would trigger the duty to make reasonable adjustments.

What particular adjustments are reasonable (if any) will depend on the circumstances, including the employee’s role, the nature of the employer’s business and its size and financial resources.

Working time – stand-by time

Ville de Nivelles v Matzak

Case: The ECJ has held that time spent by firefighters during which they were on stand-by at home and required to be able to attend the workplace within eight minutes was working time under the Working Time Directive.

In this case, the obligation to remain on call and the requirement to be able to reach the workplace within eight minutes, was crucial to the finding that the time spent on call was working time because it significantly limited the opportunities the firefighters had to devote themselves to their personal and social interests.

The decision highlights the importance of the quality of the on-call time and the degree of freedom enjoyed by the employee when considering whether stand-by time is working time.

Agency workers

Kocur v Royal Mail Group Limited

Case: The EAT has held that, after 12 weeks, an agency worker is entitled to the same basic working and employment conditions as the hirer's comparable employees and paying an agency worker for less holiday and rest breaks could not be offset with a higher rate of pay. The entitlement under the Agency Workers Regulations is to the same basic terms and conditions as comparable employees on a 'term-by-term' basis, not by comparing the overall package.

However, the EAT also held that there was no requirement to provide an agency worker with precisely the same number of working hours as the hirer's employees.

Working time – holiday pay

Brazel v The Harpur Trust

Case: The EAT has held that the correct approach for calculating holiday pay for term-time workers is to base it on the 12 week average calculation set out in s224 of the Employment Rights Act. That involves taking a 12 week average of pay from the weeks actually worked before the holiday is taken and ignoring the weeks not worked.

Using the 12 week average calculation may mean that the term-time worker is better off compared to a pro-rata calculation.  However, the EAT reiterated that part-timers are entitled to be treated no less favourably than full-time workers, not the other way round, and held that there was no scope for calculating holiday pay under the Working Time Regulations so as to avoid such a 'windfall'.

Update posted 26 February 2018

Knowledge of disability

Donelien v Liberata UK Limited

Case: The Court of Appeal has clarified that the duty to make reasonable adjustments does not apply when an employer does not know and cannot reasonably be expected to know that an employee is disabled at the relevant time.

In a useful decision for employers, it was held that the employer did not have constructive knowledge of an employee’s disability when it relied on an occupational health report that she was not disabled, made further enquiries and had taken other factors into account, including return to work interviews and letters from her GP.

Employment status

The long-awaited government response to 'Good Work: the Taylor Review of Modern Working Practices' has now been published.

The majority of the recommendations of the Review are to be acted upon in some way. In particular, the government accepts that there is a lack of clarity and certainty over employment status and it has begun consultation on the test for employment status and how it could be defined in legislation. The government also intends to develop an online tool to determine questions of employment status.

Three other consultation documents have been published in other areas that the government is proposing to take action: increasing transparency in the labour market; agency workers; and enforcement of employment rights.

Taxation of termination payments

Changes in the way in which termination payments are taxed come into force from 6 April 2018.

New rules will apply to any termination of employment that takes place on or after 6 April whereby all notice pay is to be treated as earnings and subject to tax and national insurance contributions. For a termination of employment that takes place before 6 April 2018 the old rules will apply (even if the termination payment is paid after this date).

Increase in compensation limits

The annual increases to various statutory compensation limits have just been announced. These increases are of particular relevance to those making redundancies on or after 6 April 2018 as the maximum amount for a week’s pay (used to calculate statutory redundancy payments) will increase to £508 per week (from £489 per week).

In addition, the maximum compensatory award for unfair dismissal will rise to £83,682 (from £80,541) where the effective date of termination is on or after 6 April 2018.

Update posted 1 February 2018


Malik v Cenkos Securities Plc

Case: The EAT has held that a decision-maker must have personal knowledge of a protected disclosure and be motivated by the disclosure when subjecting a whistleblower to a detriment, in order to be liable in a whistleblowing detriment claim. The knowledge and motivation of others cannot be attributed to an innocent decision-maker who does not know about the protected disclosure.

Employers may therefore want to ensure that details of a protected disclosure are not circulated widely and the make-up of any disciplinary panel should be carefully considered before disciplining an employee who has previously made a protected disclosure.

Disability discrimination – sickness absence

Ruiz Conejero v Ferroser Servicios Auxiliares

Case: The ECJ has held that the Spanish Workers Statute, which permits employers to dismiss employees for intermittent sickness absence once the absence exceeded certain thresholds, is potentially indirectly discriminatory, unless it could be objectively justified, because disabled workers were likely to have more sickness absence than non-disabled workers.

Similarly, in the UK, dismissing a disabled employee for exceeding the threshold in a company sickness absence policy could potentially be indirectly discriminatory. Employers will need to ensure that any warnings or dismissals are justified and that they have complied with the duty to make reasonable adjustments.


Bamieh v EULEX Kosovo and others

Case: The EAT has held that a British employee who was seconded by the FCO to a foreign jurisdiction was able to proceed with a whistleblowing detriment claim in the UK against colleagues who were also seconded there from the UK by the FCO.

Data protection

The European Commission has launched an online tool to help businesses, particularly SMEs, to get to grips with the General Data Protection Directive (GDPR), which comes into force on 25 May 2018.

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