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Employment law 2019 changes

Employers and workplaces need to be aware of recent changes to the law. There are two key months in the calendar – April and October. In this article we will go into some differences in the law and how it will affect employers across the country.

There aren’t many key changes in this months update, as the key focus now is on preparing for Brexit, in whichever form it may take. The changes, and what you need to do to ensure you comply with the new provisions are outlined below.

A employee researching employment law changes
A employee researching changes

The Law: what has changed?

1.The Court of Appeal has ruled that permanent workers on part-year contracts, for example, term time only, should not have their 5.6 weeks statutory holiday entitlement (under the Working Time Regulations 1998) prorated to reflect the fact they the do not work a full year. Legislation requires a worker’s holiday pay to be calculated as a week’s pay for each week of holiday and, if a worker does not have a standard working pattern, a week’s pay is taken to be the worker’s average weekly pay in the 12 weeks before the calculation date. Please note, this reference period is due to be increased to 52 weeks with effect from 6 April 2020.

Additionally, the Court of Appeal ruled that pay for regular voluntary overtime needs to be included in holiday pay calculations. Employment law tribunals will now have to decide on a case by case basis whether a particular pattern of overtime is sufficiently regular and settled to fall within the category of pay which must be included for holiday pay calculations.

Employers who have been using the 12.07% of earnings as a basis for the calculation of holiday pay for casual workers or workers who have a working pattern which means that they do not work a full year, should review their processes to ensure they comply with this change. Additionally, employers should review overtime arrangements, to ensure that where employees regularly work overtime in a settled pattern, this is included in holiday pay calculations.

2. The Information Commissioner’s Office (ICO) has updated its guidance on the timescales for responding to data subject access requests. The updated guidance makes it clear that, when calculating the one-month period for response, the day of receipt is day one, rather than day zero.

Employers, should have in place procedures to ensure requests are logged, detailing the date the request was received, and responded to appropriately. Employers must also ensure that any employee responsible for dealing with a subject access request is aware of this change to the time limit.

3. The Home Office has recently updated its document retention requirements for sponsors. One significant change is that employers must now keep a record and evidence of a migrant’s date of entry to the UK. In most cases, employers can check the date of entry by looking for an entry stamp from an immigration officer on the migrant’s passport/visa. For those individuals who don’t have an entry stamp (for example, those who can use an automated e-passport gate) employers must ask for other evidence, which may include, travel tickets, or boarding pass.

4. BREXIT! The hottest topic of the year. Despite increasing uncertainty, the Prime Minister remains committed to leaving the EU, with or without a deal, on 31 October 2019. Parliament are trying to pass various laws to prevent a no-deal exit from the EU, but the opposition parties are concerned that the Prime Minister will manage things such that the UK leaves without a deal on 31 October 2019. As we approach October, we were all hoping that plans would be increasingly clear in order that businesses could prepare effectively, however, if anything, the situation is more uncertain then ever.  It is likely that there will be a vote of no confidence in the current government in the coming days and weeks, and therefore it is not even certain that Boris Johnson will be Prime Minister at the end of the month!

The most significant impact membership of the EU has on businesses is:

  • Providing goods and services to other members of the EU
  • Using goods and services provided by other members of the EU
  • Employing EU residents
  • Having UK employees work in the EU
  • Employment legislation
  • Employees travelling between EU countries

What do we know?

Employment Law Legislation

Many pieces of employment legislation are derived from EU laws. The Government have indicated that they don’t have plans to make any immediate changes to employment rights in the UK, and we can therefore assume that employment rights will remain as they are for now. Any changes will need to proceed through the UK parliament, and therefore businesses should have time to plan and prepare for any changes prior to implementation.

Working in the UK

  • EU citizens who have lived in the UK for five years or more when Brexit takes place have the right to work in the UK indefinitely, but they must apply for settled status.
  • EU citizens who have lived in the UK for less than five years before Brexit takes place have the right to work in the UK indefinitely, but they must apply for pre-settled status, which they can change to settled status when they have lived in the UK for five years.
  • EU citizens who arrive in the UK after Brexit takes place and want to work in the UK, will be subject to any rules and agreements that may be made between the UK and the EU. Similar separate arrangements have been made with Norway, Iceland, Liechtenstein and Switzerland.
  • EU citizens who have British, Irish or ‘dual’ citizenship, or have indefinite leave to enter or remain in the UK have the right to work in the UK indefinitely and do not have to apply for settled status.

Details of the settled status scheme can be found at https://www.gov.uk/staying-uk-eu-citizen

Visiting the EU after Brexit

Visiting the EU after Brexit will be like visiting countries outside the EU. You will need to:

  • Check you have any necessary visas
  • Check your passport is valid for travel
  • Ensure you have travel insurance that covers you for healthcare
  • Ensure you have the necessary documents to drive in the EU

Detailed information on preparing for Brexit can be found at www.gov.uk

What changes are planned for the future?

The Government has proposed legislation for 2020:

From 6 April:

  • Paid parental bereavement leave introduced
  • Changes to taxation of termination payments
  • New law prohibiting use of Swedish derogation agency contracts takes effect (ask for our previous blog on the agency worker regulations for more information)
  • New law lowering the threshold required for information and consultation requests
  • New day-one right to a written statement of main terms and conditions for workers and employees
  • Amendments to mandatory information required within a statement of main terms and conditions comes into force
  • Holiday pay reference period extended to 52 weeks
  • Employment businesses must provide all agency workers with a Key Information Document

30 April

  • Deadline for agency workers on Swedish derogation agency contracts to be provided with an explanatory statement

The responsibilities on employers are increasing all the time, and the risks of getting things wrong are also growing. If you would like further information about employment law, or to help you plan, we can help you strategise or provide advice from our Expert HR Consultants. Please contact us at enquiries@opthr.co.uk.

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