Employment Law Brief | January 2019

We hope you have enjoyed the Christmas period and wish you a happy and prosperous New Year! As you might expect, December was a relatively quiet period for employment law but there were still a few things worth drawing to your attention.

1. Should HRMC and employment tribunals have the same establish whether someone is self-employed?
2. How long could it take for your tribunal claim to be heard?
3. Will immigration work the same way after Brexit?

If you wouldlike to discussany of the issues raised below, please don't hesitate to contactLiz HenryorJames Austin

Should HMRC and employment tribunals have the same tests to establish whether someone is self-employed?

The Government has published its 'Good Work Plan' which sets out its intention to make several changes to employment law. Currently someone might be found to be self-employed for tax purposes but an employee when it comes to bringing employment tribunal claims including unfair dismissal. The Government's proposal include reducing the differences between the HMRC and employment law tests to reduce the prospect of that occurring. Other proposals include:

• All workers having the right to receive a contract of employment on or before their first day. Currently the right is to receive a contract within two months of starting.
• Increasing the period for calculating a week's average pay for holiday pay entitlement from 12 weeks to 52 weeks. This may be significant for employers with staff who receive overtime pay, bonuses and/or commission, as all of these should be taken into account when calculating holiday pay. If you want to know more please contact James.
• Increasing protection for agency workers by removing a regulation which currently allows employers to pay agency workers less than comparable full time employees in some circumstances.
• Allowing employees to retain their continuous service if they leave an employer but return in less than four weeks. Currently, if employment ends but the employee is re-engaged by the same employer within seven days they may retain their continuous service but a longer break will usually mean they start from scratch if re-engaged.
• Increasing protection for zero hours workers by giving them the right to apply for more stable employment after 26 weeks of zero hours.
• Preventing employers from making deductions from tips.

How long could it take for your tribunal claim to be heard?

The minutes of the September 2018 national employment tribunal user group meeting indicate:

• The number of claims continue to increase. In between April and June 2018 there was a 165 per cent increase compared to the number of claims in the same period in the previous year.
• It's taking 12-18 months to find a hearing date for claims that will take five or more days to be heard at Tribunal. This means both employers and employees could be waiting a long time for a claim to end. A factor that employees may want to consider when deciding whether to accepta settlement offer.

Will immigration work the same way after Brexit?

The Government has set out its plans for the UK immigration system in the event that we leave the European Union (EU). The plans include:

• ending free movement;
• applying the same rules to all migrants (ie including those from the EU);
• simplifying thesponsorship regime; and
• removing the annual cap on the number of skilled workers allowed to work in the UK.

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