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23 April 2018

And finally a look at recent changes and forward to what’s happening in employment news for May 2018 and beyond

On 20 February 2018, draft regulations setting out a new charging structure for data controllers were published (Data Protection (Charges and Information) Regulations 2018). These regulations have now been approved by Parliament and will come into force on 25 May 2018 in line with the EU General Data Protection Regulation. The new structure will replace the current requirement to register with the Information Commissioner’s Office (ICO), although current registrations only need to be renewed when they run out. Data controllers will have to pay the ICO an annual data protection fee unless they are exempt. There are three tiers of charge depending on the controller’s turnover, type of organisation and number of staff. Tier 1 organisations with a turnover of up to £632,000 or no more than 10 members of staff (based in the UK or overseas) will pay £40. Small and medium organisations with a turnover of up to £36 million or no more than 250 members of staff will pay the tier 2 charge of £60. Organisations which exceed these limits will be subject to the tier 3 charge of £2,900. Employers should note that the ICO will regard all controllers as eligible to pay a fee in tier 3 unless it is notified otherwise. There will be a fine for failure to register of £4,350. The ICO has published a guide to the draft regulations which explains how to assess whether the fee is payable.

The Independent Workers’ Union of Great Britain (IWGB) has announced that it is seeking permission for a judicial review of the Central Arbitration Committee (CAC) decision that Deliveroo riders are not workers for the purposes of the union’s application for statutory recognition. The CAC held that the clause in the riders’ contracts allowing them to appoint a substitute was genuine and therefore agreed with Deliveroo that they were self-employed. However, the IWGB claims that the CAC heard no evidence of the substitution clause being used correctly, particularly as regards the obligation for the Deliveroo riders to ensure that a substitute is legally entitled to work in the UK and has no unspent criminal convictions. In addition, the IWGB claims that the CAC incorrectly disregarded the conflict between the substitution clauses and current health and safety and food safety legislation.

The Women and Equalities Committee has launched a new inquiry to investigate sexual harassment in the workplace. This follows recent high-profile claims and a 2017 survey suggesting that 40% of women and 18% of men have experienced some form of unwanted sexual behaviour in the workplace. The Committee has requested written evidence on the extent of sexual harassment in the workplace; who experiences it and perpetrates it; how workers can be better protected from harassment by clients, customers and other third parties; and what actions should be taken by Government and employers to change workplace culture. The inquiry will also examine the effectiveness of Tribunal procedures and whether it is appropriate to use non-disclosure agreements in sexual harassment cases.

Employers with at least 250 employees were required to publish their gender pay gap data for the first time by 4 April 2018 on the Government’s online reporting service and their own website. Having previously published its draft proposals for enforcing compliance with the legislation, the Equalities and Human Rights Commission (EHRC) said just after the deadline that 1,557 firms had missed the deadline, all of whom it will now contact to remind them of their legal obligations. The EHRC could take legal action against those employers who have failed to comply, with penalties including an unlimited fine.

As part of the Government’s proposed reforms to address concerns over excessive remuneration, the Department for Business, Energy and Industrial Strategy has announced new research into whether some companies are repurchasing their own shares to artificially inflate executive pay. The research will help the Government understand how companies use share buybacks and whether any further action is needed to prevent them from being misused.

New legislation has been laid before Parliament which will extend the right to receive an itemised pay statement to all workers, not just employees (Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No 2) Order 2018). This is part of the Government’s commitment in its response to the Taylor Review to improve transparency for workers. Additional legislation will require employers to include on payslips the number of hours being paid where wages vary as a consequence of time worked, and to provide separate figures where a different rate is paid for different types of work (Employment Rights Act 1996 (Itemised Pay Statement) Order 2018). It is intended that both orders will come into force on 6 April 2019.

New hourly rates for the national minimum wage came into force from 1 April 2018. The rate for workers aged 25 and over is now £7.83. For workers aged between 21 and 24, the rate is now £7.38. Workers aged between 18 and 20 should now receive £5.90 and the apprentice rate is now £3.70. The rates of various social security benefits also increased from 1 April 2018 in line with the Consumer Prices Index. Statutory maternity, paternity, adoption and shared parental pay is now £145.18 per week. The weekly rate of statutory sick pay increased to £92.05 from 6 April 2018.

Tribunal compensation awards also increased on 6 April 2018 in line with a 3.9% rise in the Retail Prices Index. The maximum limit on a week’s pay is now £508 (previously £489) and the maximum compensatory award for unfair dismissal has increased to £83,682 (from £80,541). The minimum basic award for trade union, health and safety and employee representatives dismissals has increased to £6,203 (from £5,970). In cases involving dismissal, the new limits will apply where the effective date of termination falls on or after 6 April 2018.

The Trade Secrets Directive, which harmonises the definition and protection of trade secrets across the EU, came into force on 5 July 2016. A consultation has recently been completed by the Intellectual Property Office on draft regulations to implement this Directive into UK law. The regulations include a statutory definition of the term ‘trade secret’, details of enforcement mechanisms and time limits for bringing proceedings. A trade secret is defined as confidential information which is secret; has commercial value because it is secret; and has been subject to reasonable steps to keep it secret by the person in control of the information. Although the new regulations will provide a new means of enforcement to protect trade secrets, UK law is already broadly compliant with the requirements of the Directive. Post-termination restrictive covenants agreed between employers and employees will not be affected by the new provisions. A response to the consultation will be published in due course with the final draft regulations, which must be brought into force by 9 June 2018.

The new rules on the tax treatment of payments in lieu of notice came into effect on 6 April 2018. Previously only non-contractual payments in lieu of notice could be paid free of tax and national insurance. Under the new rules, both contractual and non-contractual payments in lieu of notice, calculated according to a set formula, are now taxable and subject to Class 1 NICs. HMRC has confirmed that the changes will only affect payments which are both made in and relate to termination occurring in the 2018-19 and subsequent tax years, and that the new rules will not apply to statutory and non-statutory redundancy payments.

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