December 28, 2018

2018 – Year in Review for HR

As 2018 comes to an end, we look at five key employment law rulings and legislation changes, that have affected HR teams over the last 12 months.  

1. The Court of Justice of the European Union (CJEU) concludes that if an employee is on call at home, it does count as Working Time  

The case of a firefighter in Belgium could have wide-ranging implications for employers who have on-call workers. 

In December 2009, Matzak, a volunteer firefighter in Belgium, brought judicial action against his employer for a failure to pay sufficient remuneration for his services during his years of service. 

In particular, he claimed that his standby services should be categorised as working time.

The court was asked to rule on whether Matzak’s standby work should be considered to be working time under the directive because, despite his being at home while on call, “the constraints on the worker at the time prevent[ed] him from undertaking other activities”. 

It found that, if the standby period – in the form of a physical presence at the place of work – was excluded from the concept of working time, it would seriously undermine the objective to ensure workers’ safety and health by granting them adequate rest periods and breaks. 

You can read our blog for more information.  

2. The General Data Protection Regulation (GDPR) 

The General Data Protection Regulation took effect on 25 May 2018. New fines of up to £17m or 4 per cent of your global turnover now apply for breaches of personal data.

Passed in May 2016, the European Union (EU) General Data Protection Regulation (GDPR) replaces the minimum standards of the Data Protection Directive. It requires employers to ensure that they are compliant in how they store, process and delete data. 

A lot has been said about this new regulation in the media. There have been warnings that many businesses know very little or nothing at all about the GDPR. 

For employers it has a significant bearing on your relationship with your staff. So, what are the myths doing the rounds and the realities behind them? 

Read our blog for 11 GDPR Myths Debunked 

3. The supreme court decision in Pimlico Plumbers v Smith 

On 13 June 2018 the Supreme Court held that Mr Smith was a worker of Pimlico Plumbers, although not an employee. The ruling reaffirms the tests for whether an individual who works for your company is, in law, an ‘Employee’, ‘Self-Employed’, or partway between the two as a ‘Worker’.

Contrary to the belief of many employers, just because you agree with an individual that they will be called ‘Self-Employed’ and they will look after their own tax and national insurance affairs, this does not mean they are not, in fact, an Employee or a Worker. 

What is the main difference between Employee, Worker and Self-Employed? Read our blog to find out.  

4. Court of Appeal Reverses Pay Decision in Sleep-In Workers Saga 

On 13 July 2018, the Court of Appeal reversed a minimum wage decision relating to “sleep-in” sessions by care workers. The case in question, Royal Mencap Society and Claire Tomlinson-Blake, has ramifications for care providers throughout the UK.

In a series of Judgements, the Employment Appeal Tribunal (and subsequently HMRC) previously ruled that “sleep-in” sessions amounted to work, and therefore all hours undertaken qualified for pay of at least National Minimum Wage (NMW). 

The Judgement in July reinstates the previous position that someone would have to be “required to be awake for the purposes of working” to qualify for NMW. 

It once again asserts that such staff are “available for work” when asleep but not actually “working”. They would have to be woken to perform some relevant task before being considered as working. 

Also, the Judgement contends that an exemption in the National Minimum Wage Regulations for such activity still applies. 

Read our blog for more information on the ruling.  

5. Paternity Leave Reform Plans Considered by Government 

In March 2018, the Women and Equalities Committee (WEC) published its paper on reforming workplace policies to support fathers in balancing their parental responsibilities and work. The take up (or lack of it) of shared paternity leave was of particular concern.

As employers will be aware, the original two-week statutory paid paternity leave was introduced in 2003. This was followed by the legislatively cumbersome shared parental leave policy in 2015 which allows fathers to use the paid leave that would have otherwise been taken by the mother. 

Although intended to encourage fathers to take longer paternity, any increase in uptake has been limited. 

The key recommendations from the WEC report suggest the Government should reform workplace policies to ensure they support fathers in the workplace. 

These included statutory paternity pay being paid at 90 per cent of the father’s pay (capped for higher earners). This is to ensure that all fathers, regardless of income, can be at home around the time of their child’s birth.  

For more information on the recommendations read our blog.

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About the author

Hannah Booth