Employment Law Monthly Update – January 2019 – Lexology

We are pleased to provide you with the Herrington Carmichael LLP employment law update for January 2019.

This is a key note summary of some of the main developments in employment law in the last month.

This month’s update focuses on the Government’s publication of the Good Work Plan, which has laid down the first few pieces of legislation, designed to effect the Government’s vision for the UK labour market.

1. The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018

These Regulations provides proposals that the written statement of employment particulars must be given from day one of employment, rather than within one month. It is proposed that it must include (but not be limited to):

• How long a job is expected to last

• Details of eligibility for sick leave and sick pay

• The duration and conditions of any probationary period.

This information to be provided is in addition to the current mandatory information, which must be provided in a written statement of particulars. It is good practice, therefore, for employers to begin evaluating their recruitment procedures, to ensure that this new legislation is being complied with. These Regulations are due to come into force on 6 April 2020.

2. The Agency Workers (Amendment) Regulations 2018 These Regulations contain proposed provisions which are designed to scrap the concept of ‘Swedish derogation’. Under the Agency Workers Regulations, agency workers are entitled to get the same basic pay and conditions as comparable employees do, after a 12 week qualifying period. However, under the concept of Swedish derogation, an agency worker is entitled to exchange their right to be paid equally to permanent employees, in return for a contract guaranteeing pay between assignments.

Initially, this was designed to provide reassurance to agency workers that, even during periods where there were gaps in work, they would continue to earn. However, the Good Work Plan states that agency workers are increasingly not benefitting from this as, in a climate of full employment, it is unusual for agency workers to have gaps between their assignments. Supposedly, employers are reducing the size of their wage bill and agency workers are losing out.

The Agency Workers (Amendment) Regulations 2018 seeks to redress this balance in favour of the agency workers, by scrapping the concept of Swedish derogation. As a result, employers will be required to inform such agency workers that they have the right to equality of treatment alongside permanent employees after a relevant qualifying period.

This piece of legislation also comes into force on 6 April 2020.

3. The Employment Rights (Miscellaneous Amendments) Regulations 2019 These Regulations propose to extend the right of an employee to be provided with a written statement of particulars to workers. Furthermore, the government has proposed to increase the maximum level of penalty that an Employment Tribunal can impose in an instance of an aggravated breach of employment law from £5,000 to £20,000.

4. Interpretation of “unfavourable” in disability discrimination The Supreme Court has provided an update about the definition of ‘unfavourable’ treatment in relation to the concept of disability discrimination. Mr Williams was employed by Swansea University, and was forced to retire early by reason of ill health. He had previously reduced his hours, at his own request, due to his health condition. Two years later, Mr Williams retired and was entitled to claim his pension under the schemes ill-health retirement rules.

Mr Williams argued that he had been treated unfavourably because, as a result reducing his hours, he received a lower pension.

The Supreme Court has held that this did not amount to ‘unfavourable’ treatment for disability discrimination purposes as, the award of a pension in itself was not intrinsically ‘unfavourable’ or disadvantageous to Mr Williams.

Employers can take some comfort from this decisoin in providing benefits to disabled employees. The Supreme Court’s ruling confirms that just because a benefit being provided to a disabled individual is not the most advantageous it could be, it will not necessarily be deemed to be ‘unfavourable’ treatment for the purpose of bringing a disability discrimination claim.

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