109: And finally a look forward to what’s happening in employment news for August 2018

The Data Protection Act 2018 received Royal Assent on 23 May 2018. This new Act implements the EU General Data Protection Regulation (GDPR) and replaces the Data Protection Act 1998. Most of its provisions came into force on 25 May 2018, and the Information Commissioner’s Office (ICO) has confirmed that it will begin enforcement immediately. This means that employers must be able to demonstrate that their employment procedures, polices and contracts comply with the new data processing principles, and that appropriate accountability and governance structures are in place. Where necessary, this should include the appointment of an independent, qualified Data Protection Officer. The ICO has recently updated its guide to the GDPR which includes information for employers on data protection impact assessments; consent; assessing what constitutes personal data; data portability; the right to object; and how to recognise subject access requests.

Following a brief consultation, the Trade Secrets (Enforcement, etc) Regulations 2018 came into effect on 9 June 2018 and will apply to court proceedings brought after this date. These Regulations implement the EU Trade Secrets Directive which aims to harmonise the law protecting trade secrets across member states. They are likely to remain in force after Brexit. Until now, trade secrets in the UK have been protected by the law of confidence which is derived mainly from case law. From 9 June, trade secrets have additional protection if they come within the new statutory definition, which includes a requirement for the person lawfully in control of the information to take reasonable steps to keep it secret. The Regulations also set out the circumstances in which interim and final injunctions can be granted, and provisions on the duration of injunctions.

On 18 May 2018, the Treasury and HM Revenue and Customs published a consultation document setting out an evaluation of the IR35 off-payroll working rules for the public sector which were introduced in 6 April 2017, and options for similar changes to the off-payroll rules for the private sector. HMRC estimates that around a third of people working through a personal service company (PSC) should fall within IR35, whereas currently only 10% of this group are taxed as employees. Options for reform include extending the public sector changes to the private sector, although the consultation acknowledges that the design of the reforms and implementation process could be improved; encouraging or requiring businesses to ensure that off-payroll workers provided through their labour supply chains are IR35-compliant; and strengthening record-keeping requirements for payments to PSCs. The closing date for responses to the consultation is 10 August 2018.

The Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018 came into force on 23 May 2018, implementing the recommendations of an independent review of NHS whistleblowing in 2014. These Regulations contain new rules prohibiting NHS Trusts from treating job applicants less favourably on the grounds that they have made, or appear to have made, a protected disclosure. The term ‘applicant’ covers any individual who applies for a contract of employment, a contract to do work personally, or an appointment to an office. Discrimination by a worker or agent of a prospective NHS employer will be treated as through it was carried out by the NHS employer itself, although there will be a defence if the employer can show that it took all reasonable steps to prevent its staff or agents from discriminating. As with other whistleblowing claims, there is no upper limit on the compensation which can be awarded.

The Government has recently published its response to the call for evidence on collective redundancy consultation for employers facing insolvency which was issued in March 2015. Responses to this call for evidence highlighted the conflict between employment and insolvency law, in particular, the difficulties of complying with the consultation requirements in an insolvency situation. For the time being, the Government’s only response will be to develop better guidance for insolvency practitioners to clarify the law and address misunderstandings, although it will consider at a later date whether additional measures such as a new Statement of Insolvency Practice are necessary. The guidance will set out what is expected of insolvency practitioners, including the need to remind directors of their duty to consult; how to comply with the notification requirements; and how to deal with the consultation process efficiently and constructively.

The Director of Labour Market Enforcement, David Metcalf, has published his Labour Market Enforcement Strategy for 2018/19. His remit covers three enforcement bodies: the Gangmasters and Labour Abuse Authority; the Employment Agency Standards Inspectorate; and the HMRC National Minimum Wage (NMW) and National Living Wage (NLW) team. Recommendations in the strategy document include: supporting employers to comply with NMW law; giving HMRC or another state body the power to enforce holiday pay; improving the quality and availability of information on employment rights; introducing a mandatory statement of rights for all workers within one week of commencing employment; including NMW and NLW guidance on payslips; and making brand names at the top of a supply chain jointly responsible for any non-compliance found further down the supply chain.

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018 has been passed to amend the Employment Rights Act 1996 to provide all workers, not just employees, with the right to an itemised pay statement from 6 April 2019. This is in response to a recommendation in the Taylor Review of Modern Working Practices to increase transparency on pay. A further amendment will introduce an additional requirement for payslips to include the number of hours for which workers are being paid, where pay varies by reference to time worked. The statement can include the number of hours worked as a single aggregate figure, or separate figures for different types of work or different rates of pay. Workers will be able to enforce their right to an itemised payslip in an Employment Tribunal.

The Office for National Statistics has recently published its analysis of labour disputes for 2017. This shows a significant decrease in the number of workers involved in strike action. There were 276,000 working days lost due to labour disputes, the sixth lowest total since records began in 1891. The number of workers involved in labour disputes (33,000) was the lowest figure since 1893. This compares with 154,000 in the previous year. 68% of all working days lost were in the transport and storage sector, with most in public transport. For the first time since 1999, in 2017 there were more working days lost in the private sector than the public sector, and the number of days lost in the public sector was the lowest figure on record.