In the news this month:

Parental Bereavement Leave, Salaried Partner was not an employee, Tribunal Claims on the increase, No change to self-employed NIC’s, Mental Health in the Workplace initiative, possible end to Auto-Enrolment on Brexit, and tackling the Gender Paygap

Right to Leave for Bereaved Parents

The Parental Bereavement (Leave and Pay) Act 2018 has been passed and is expected to come in to force in 2020. This legislation will give all employed parents who meet the relevant eligibility criteria a statutory right to two weeks’ leave if they lose a child under the age of 18 or suffer a stillbirth from 24 weeks of pregnancy.
The final text of the Act has not yet been published. We also await regulations setting out the detail of how parental bereavement leave will be taken. Such regulations will provide that the leave must be taken within 56 days of the child’s death.

Salaried Partner not an Employee

Morrison v Aberdein Considine and Company UKEATS/0018/17 (29 August 2018)

This month, the EAT upheld an employment tribunal decision that a salaried partner in an unlimited liability firm (ie “old style” partnership) was a partner and not an employee.

The label “salaried partner” has no particular status in law, and the tribunal had decided to take the partnership agreement as a starting point before examining all the facts and circumstances to assess the nature of the parties’ relationship and the true agreement between them. However, the EAT said that the tribunal was entitled to take this approach because:

  • The parties accepted that their relationship was governed by it.
  • It had only been used as a starting point against which to test consistent and inconsistent factors pointing towards employment status.
  • The partner’s claim that she was an employee was contradicted by formal documentation, which made it necessary to scrutinise aspects of the agreement to see if they reflected reality.

It is important to note that this is a decision of the Scottish EAT and that the parties had acknowledged that it was generally accepted in Scottish law that an individual cannot be both a partner and an employee. This is not the case in English law where a person can be both a partner and employee.

Tribunal Stats show ongoing rise in claims

During the period April to June 2018, single claim receipts, disposals of claims and outstanding caseload all increased by comparison with the same period in 2017, by 165%, 56% and 130% respectively. Receipts in multiple claims increased by 344%, due to a large airline claim, while disposals of claims fell by 13%, leading to a 34% increase in caseload outstanding.

Before the tribunals and EAT, 74% of claimants were represented by a lawyer in 2017/18 compared with 86% in 2016/17. In contrast, 17% of claimants had no representative in 2017/18, up from 9% in 2016/17.

In relation to the Employment Tribunal fee refund scheme (following the finding by the Supreme Court in the Unison case that such fees contravened law), between October 2017 and 30 June 2018, 14,500 applications for refunds were received and 12,400 refund payments were made, with a total value of £10,615,000.

Government U-turn on abolition of Class 2 NICs for self-employed

On 6 September 2018, the government announced that it would not proceed with the proposed abolition of Class 2 NICs for self-employed workers during the current Parliament. The intention, announced in 2015, was to bring NICs for the self-employed into line with those paid by employees, and simplifying the taxation of self-employment.

The government will keep the proposals under review, and has confirmed its intention to legislate for reforms to the NICs treatment of termination payments and income from sporting testimonials.

Gateway to mental health support

A survey of 44,000 people carried out by Mind revealed that 48% of all employees are affected by poor mental health, but only half of these had discussed the issue with employers. A recent poll carried out by the Institute of Directors also found that less than 20% of firms provided managers with mental health training.

This has lead to the launch of a new, online gateway to resources, Mental Health at Work, which was unveiled last month by Prince William at an event in Bristol. The gateway offers access to resources, training and information in a bid to defeat stigma and change the approach to workplace health. Chief Executive of Mind Paul Farmer said, “Now is the time for a step change in how we think about mental health at work”.

Toolkit to fix the pay gap

The Women’s Business Council’s Men as Change Agents group (MACA) has published a toolkit of practical advice aimed at business leaders and CEOs at FTSE 350 companies to assist them with closing the gender pay gap.

The toolkit recommends:
the promotion of flexible and agile working,
encouraging utilisation of shared parental leave; and
the creation of talent pipelines to aid the progression of women to more senior roles.

No-deal Brexit may end Auto-Enrolment Pensions

The Home Secretary, Sajid Javid, has suggested that automatic enrolment may need to be scrapped in the event of a no-deal Brexit. Javid proposed that auto-enrolment may need to be reconsidered as a means to support the economy if Britain cannot reach a deal with the European Union.

In spite of doom and gloom predictions in relation to auto-enrolment, unemployment rates have halved since 2011, with Work and Pensions Secretary Esther McVey recently claiming a “pensions revolution” in the light of the success of auto-enrolment.