Things to Watch and Do in 2018.

By Andrew Knorpel, Head of Employment team

As we move forward into 2018, I thought that it would be useful to focus on a few employment issues to watch out for and what you should be doing about them.

At the time fees for bringing tribunal claims were introduced in July 2013, we saw around a 70% drop in the number of claims. In the first quarter after the abolition of the fees in July 2017, there was a 64% increase in single claims. This means that we are now back at a level of about half the number of claims presented in the first half of 2013. We probably won’t see the previous level of claims, but employers should be wary of those lower-paid staff who may now be more inclined “to give it a go” in the absence of any tribunal fees to be paid. Tribunal resources are definitely being stretched at the moment – from personal experience, we know that it took Croydon tribunal six weeks to issue a claim which had been filed in the first week of December 2017.

In the next tax year, any payment in lieu of notice (“PILON”) will be subject to both income tax and national insurance deductions. It won’t matter whether there’s a PILON clause in the employee’s contract of employment. If it’s a PILON, it will be subject to normal deductions from 6 April 2018. As this will adversely affect an employer’s position in settlement agreement negotiations for those staff who do not have PILON clauses in their contracts (where the PILON can presently often be paid without any deductions), you may wish to consider whether it’s worth ensuring that any negotiated settlements around the beginning of April are completed and all payments made in the current tax year.

With the most recent holiday pay case law opening up the possibility of claims for holiday pay going back further than two years, employers should be very wary if they are still not including average overtime, bonuses and commissions in their calculation of holiday pay. At the bare minimum, employers should set aside a contingency for such claims. We are also finding this issue is cropping up time and again when we are advising on the sale of businesses and the seller is having to give indemnities to the purchaser in respect of any potential claims for underpaid holiday.

We’ll also be keeping an eye out for the latest cases on employment status with the Pimlico Plumbers appeal and Boxer TUPE case due to be heard in February 2018. In an interesting move while we wait for Uber’s further appeal be heard in November 2018, it has been reported that Uber are now requiring their drivers to take a six hour break after ten hours driving. Employers should carefully analyse their workforce to ensure that they have correctly identified the employment status of all staff and directly-engaged contractors.

Finally, don’t forget the GDPR coming into force on 25 May 2018. It really is time to carry out your data audit and get your data house in order. Please let us know if you need any help in this regard.

PS – you may have your gender pay gap report and appropriate narrative to publish by 4 April 2018 too!

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