Employment law updates 2018: important changes for employers

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

08 June 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 08 June 2018

Misconduct dismissals

Quintiles Commercial UK Ltd v Barongo

Case: The EAT has held that a dismissal without prior warnings for serious misconduct, but not gross misconduct, is not necessarily unfair.

Although it commented that in most cases such a dismissal will fall outside the band of reasonable responses and be unfair, the EAT pointed out that there was no rule that this must be the case and the tribunal should have considered all the circumstances, including the Acas code and the employer’s disciplinary procedure.

Part-time workers

Roddis v Sheffield Hallam University

Case: The EAT has held that a part-time associate lecturer on a zero hours contract could compare himself to a permanent full-time lecturer for the purposes of a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations.

Although the comparator is required to be employed under the same type of employment contract, the EAT pointed out that a difference in hours cannot be taken as a reason that the two contracts were dissimilar because this would defeat the purpose of the legislation.

Parental leave

A private member’s bill, with cross-party support, has been presented to Parliament to require employers with 250 or more employees to publish information about their parental leave and pay policies on their website. The aim of The Parental Leave and Pay Arrangements (Publication) Bill is to improve transparency, so job applicants do not need to ask about parental leave and pay arrangements at interview, and to encourage more competition between companies on parental pay.

New guidance

Acas has published new guidance to help employers plan ahead for requests for time off and other issues that may arise during the World Cup taking place in Russia between 14 June 2018 and 15 July 2018.

Public Health England and Business in the Community have published a toolkit designed to help employers tackle substance abuse (alcohol, drugs and tobacco).


Update posted 30 May 2018

Off–payroll working in the private sector

Following the reform of the off-payroll working rules (known as IR35) for engagements in the public sector in April 2017, the government has published a consultation document and is seeking views on how to tackle non-compliance with off-payroll working rules (IR35) in the private sector.

The public sector rules require public authorities who engage individuals through intermediaries (such as personal services companies) to become responsible for determining whether IR35 applies and whether tax and national insurance deductions should be made. The government is considering ways that these rules for the public sector can be adapted for the private sector.

The closing date for responses to the consultation is 10 August 2018.

Data Protection Act 2018

The Data Protection Act 2018, which sits alongside the GDPR, received Royal Assent on 23 May 2018. This Act makes provisions for how data protection law applies in the UK and extends the enforcement powers of the Information Commissioner’s Office (ICO) that are not contained in the GDPR.

The ICO has also begun consultation on its draft regulatory action policy, which sets out how it intends to use its enforcement powers. It includes statutory guidance on how the ICO will serve assessment or information notices and apply fines and the criteria that the ICO will consider in the event of a breach or potential breach; including:

  • its nature and seriousness
  • the types of personal data and number of individuals affected
  • the costs of mitigating any risk, issue or harm.

Under the draft policy self-reporting is encouraged and will be taken into account when enforcement action is being considered.

Discrimination arising from disability

City of York Council v Grosset

Case: The Court of Appeal has held that the dismissal of a disabled teacher, for showing an 18 certified film to vulnerable 15 and 16 year olds, can constitute discrimination arising from disability even though the employer did not know that the misconduct arose as a consequence of the disability.

Once the tribunal found a causal link between the misconduct and the disability, there was no further requirement that the employer had to be aware that the two were connected. An employer would escape liability only where it did not know, and could not reasonably have been expected to know, that the employee had a disability; not where it did not know the consequences of the disability.

Dress codes

The Government Equalities Office has published new guidance on dress codes and sex discrimination.

The guidance points out that dress codes for men and women do not have to be identical, but standards imposed should be equivalent and gender specific prescriptive requirements, for example the requirement to wear high heels, manicured nails and make-up, should be avoided.


Update posted 10 May 2018

Shared parental leave

Hextall v Chief Constable of Leicestershire Police

Case: The recent EAT decision in Capita Customer Management Ltd v Ali held that it is not direct sex discrimination for an employer to offer enhanced maternity pay without paying enhanced shared parental pay in line with this. However, the question of whether it could constitute indirect sex discrimination has not yet been resolved, despite being considered in the more recent case of Hextall v Chief Constable of Leicestershire Police.

The employment tribunal in Hextall held that a failure to pay a man enhanced shared parental pay in line with enhanced maternity pay was not direct or indirect sex discrimination. The EAT has now held that the tribunal made a number of errors when it was considering the indirect sex discrimination claim and the case has been referred to another tribunal for it to be re-heard. We are therefore waiting for further guidance on this point.

Constructive dismissal

Kaur v Leeds Teaching Hospitals NHS Trust

Case: The Court of Appeal has held that an employee could rely on the last straw to claim constructive dismissal when the employer had committed a series of acts entitling the employee to terminate the contract of employment, even if the employee had affirmed the contract in relation to an earlier act. When the employer’s conduct was continued by further acts, the employee was entitled to revive their right to terminate based on the totality of the employer's conduct.

Itemised pay statement

The right to an itemised pay statement is being extended to cover all workers (not just employees) from 6 April 2019. This right will be enforceable at an employment tribunal and will only apply to earnings on or after this date.

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